Author 
















































































































































CONTEMPTS QF COURT 



' # i ^ * - *‘f 1 W ^ w . ' ' — ' * 

^ COMMITTEE OR THE JUDICIARY. OF THE 


HOUSE OF REPRESENTATIVES 


DECEMBER 7, 8, 9, and 11, 1911 


SIXTY-SECOND CONGRESS 

SECOND SESSION 


WASHINGTON 

GOVERNMENT PRINTING OFFICE 
1911 










■ 











. 


























































































































I » ? 

































'V 


COMMITTEE ON THE JUDICIARY. 
House of Representatives. 


Henry D. Clayton, Alabama, 
Robert L. Henry, Texas. 

Edwin Y. Webb, North Carolina. 

Charles C. Carlin, Virginia. 

William W. Rucker, Missouri. 

William C. Houston, Tennessee. 

John C. Floyd, Arkansas. 

Robert Y. Thomas, Jr., Kentucky. 

James M. Graham, Illinois. 

H. Garland Dupre, Louisiana. 

Martin W. Littleton, New York. 

J. J. Speight, Clerk. 


Chairman. 

Walter I. McCoy, New Jersey. 
John W. Davis, West Virginia. 
Daniel J. McGillicuddy, Maine. 
John A. Sterling, Illinois. 
Reuben O. Moon, Pennsylvania. 
Edwin W. Higgins, Connecticut. 
Paul Howland, Ohio. 

Frank M. Nye, Minnesota. 
George W. Norris, Nebraska. 
Francis H. Dodds, Michigan. 


CONTEMPTS OF COURT. 


Committee on the Judiciary, 

House of Representatives, 
Washington, D. C., Thursday, December 7, 1911. 

The committee met at 10.30 o’clock a. m., Hon. Henry D. Clayton, 
chairman, presiding, a quorum being present. 

The Chairman. Gentlemen of the committee, on the 16th day of 
August last this committee adopted the following motion: 

That this bill [H. R. 13578, to define and punish contempts of court] be made a 
special and continuing order for consideration and hearing thereon by the whole 
committee, beginning on Thursday, December 7, 1911. 

This meeting to-day is, therefore, called for the express purpose 
of considering the bill H. R. 13578 and all other bills on the same 
subject. You will find copies of these bills before you. Bills relat¬ 
ing to this subject have heretofore been considered in both branches 
of Congress. For instance, Hr. Hill, a Senator from New York, 
reported favorably in the Fifty-fourth Congress, at the first session, 
on April 30, 1896, Senate bill 2984, dividing contempts of court into 
direct and indirect contempts and defining the same; also after¬ 
wards, in the Fifty-fourth Congress, on January 18, 1897, Mr. Ray, 
who was then chairman of the Judiciary Committee of the House 
(he is now one of the United States district judges in the State of 
New York), reported favorably a substitute for the Senate bill 2984, 
known as the Hill bill, on this subject of contempts. 

The Ray bill or substitute also divides contempts into direct and 
indirect contempts and follows some of the ideas of the Hill bill. I 
may say that it follows all of the ideas of the Hill bill substantially, 
but it enlarges upon the Hill bill, particularly in the matter of the 
provisions for the trial of indirect contempt cases. I have before me 
a copy of the report which Senator Hill made in the Senate on the 
bill I have referred to, and also a copy of the report which Mr. Ray 

3 




4 


CONTEMPTS OF COURT. 


made from tlie Judiciary Committee of the House on his substitute 
for the Hill bill. I have also collated, for the benefit of the committee, 
all the United States statutes relating to contempts of court, begin¬ 
ning with the one enacted at the first session of the First Congress ol 
the United States, being chapter 20 of the act approved September 
24, 1789, and down to and including the provision that is now in the 
new Judicial Code (sec. 268) that has been adopted and will go into 
effect on January 1. 1 have also had collated the statutory provisions 

of the various States of the Union in regard to contempts of court, 
beginning with the States in their alphabetical order, that is, begin¬ 
ning with Alabama and winding up with Wyoming. All of this 
information I have had collated for the benefit of the committee, but 
at this time I do not think it advisable to arrest the proceedings of 
the committee to read or refer in detail to Senator Hill's report or to 
Judge Ray's report, or with more particularity to the provisions of the 
Hill bill or the Ray bill. I shall print as part of the hearings the Hill 
bill and the report thereon, and the Ray bill and the report thereon. 
They are as follows: 

THE HILL BILL. 


[S. 2984, Fifty-fourth Congress, first session.] 

AN ACT In relation to contempts of court. 

Be it enacted by the Senate and House of Representatives of the United States of America 
in Congress assembled , That contempts of court are divided into two classes, direct 
and indirect, and shall be proceeded against only as hereinafter prescribed. 

Sec. 2. That contempts committed Juring the sitting of the court or of a judge at 
chambers, in its or his presence or so near thereto as to obstruct the administration of 
justice, are direct contempts. All others are indirect contempts. 

Sec. 3. That a direct contempt may be punished summarily without written accu¬ 
sation against the person arraigned, but if the court shall adjudge him guilty thereof a 
judgment shall be entered of record in which shall be specified the conduct consti¬ 
tuting such contempt, with a statement of whatever defense or extenuation the 
accused offered thereto and the sentence of the court thereon. 

Sec. 4. That upon the return of an officer on process or an affidavit duly filed, 
showing any person guilty of indirect contempt, a writ of attachment or other lawful 
process may. issue and such person be arrested and brought before the court; and 
thereupon a written accusation setting forth succinctly and clearly the facts alleged 
to constitute such contempt shall be filed and the accused required to answer the 
same, by an order which shall fix the time therefor, and also the time and place for 
hearing the matter; and the court may, on proper showing, extend the time-so as to 
give the accused a reasonable opportunity to purge himself of such contempt. After 
the answer of the accused, or if he refuse or fail to answer, the court may proceed at 
the time so fixed to hear and determine such accusation upon such testimony as shall 
be produced. If the accused answer, the trial shall proceed upon testimony produced 
as m criminal cases, and the accused shall be entitled to be confronted with the wit¬ 
nesses against him; but such trial shall be by the court, or upon application of the 
accused, a trial by jury shall be had as in any criminal case. If the accused be found 
guilty judgment shall be entered accordingly prescribing the punishment. 

Sec. 5. That the testimony taken on the trial of any accusation of indirect contempt 
may be preserved by bill of exceptions, and any judgment of conviction therefor 
may be reviewed upon direct appeal to, or by writ of error from, the Supreme Court, 
and-affirmed, reversed, or modified as justice may require. Upon allowance of an 
appeal or writ of error execution of the judgment shall be stayed upon the giving of 
such bond as may be required by the court or a judge thereof, or by any justice of the 
Supreme Court. 

Sec. 6. That the provisions of this act shall apply to all proceedings for contempt 
in all courts of the United States except the Supreme Court; but this act shall not 
affect any proceedings for contempt pending at the time of the passage thereof. 

(Passed the Senate June 10, 1896.) 

Attest: Wm. R. Cox, 

Secretary . 


CONTEMPTS OF COURT. 


5 


Let it here be noted that the Hill bill, as it was originally introduced, 
was amended in the Senate on June 9,1896 (see Cong. Rec., 54th Cong., 
1st sess., vol. 28, part 7, p. 6322), as it was reported on by having 
stricken from it, after the word “ court, ” in the latter part of the next 
to the last sentence in paragraph four of the hill the words, “in its dis¬ 
cretion”; and the word “may” in the same sentence was changed to 
“shall”: and the sentence was made to conclude with the following 
words: “but such trial shall be by the court, or upon application of 
the accused, a trial by jury shall be had as in any criminal case.” 

In Senate Document 190, Fifty-seventh Congress, first session, this 
amendment of the Hill bill, as it passed the Senate, is not noted. 

The following is a copy of the Senate report on this bill: 

[Senate Report No. 827, Fifty-fourth Congress, first session.] 

The Committee on the Judiciary, to whom was referred Senate resolution No. 83, 
‘which was as follows: 

11 Resolved, That the Judiciary Committee is hereby directed to investigate the law 
upon the whole subject of ‘Contempts of court,’ as enforced by the Federal courts, 
and to report to the Senate whether any additional legislation is necessary for the 
protection of the rights of citizens; and if so, to report such legislation;” and to whom 
was also referred Senate bill No. 418, entitled “A bill concerning the trial and 
punishment of contempts of the United States courts herein mentioned,” respect¬ 
fully report: 

In obedience to the resolution aforesaid, the committee have duly investigated 
and considered the whole subject of “Contempts of courts,” as enforced by the Fed¬ 
eral courts, and believing that some additional legislation is necessary, or at least 
desirable, upon that subject, recommend the passage of said Senate bill No. 418 with 
an amendment striking out the title and all the provisions of said bill, and in their 
place inserting the following: 

“A BILL In relation to contempts of court. 

u Beit enacted by the Senate and House of Representatives of the United States of America 
in Congress assembled , That contempts of court are divided into two classes, direct 
and indirect, and shall be proceeded against only as hereinafter prescribed. 

“Sec. 2. That contempts committed during the sitting of the court, or of a judge at 
chambers, in its or his presence or so near thereto as to obstruct the administration of 
justice, are direct contempts. All other are indirect contempts. 

“Sec. 3. That a direct contempt may be punished summarily without written accu¬ 
sation against the person arraigned, but if the court shall adjudge him guilty thereof 
a judgment shall be entered of record in which shall be specified the conduct con¬ 
stituting such contempt, with a statement of whatever defense or extenuation the 
accused offered thereto and the sentence of the court thereon. 

“Sec. 4. That upon the return of an officer on process or an affidavit duly filed, 
showing any person guilty of indirect contempt, a writ of attachment or other lawful 
process may issue, and such person be arrested and brought before the court; and 
thereupon a written accusation, setting forth succinctly and clearly the facts alleged 
to constitute such contempt, shall be filed and the accused required to answer the 
same, by an order which shall fix the time therefor, and also the time and place for 
hearing the matter; and the court may, on proper showing, extend the time so as to 
give the accused a reasonable opportunity to purge himself of such contempt. After 
the answer of the accused, or if he refuse or fail to answer, the court may proceed at 
the time so fixed to hear and determine such accusation upon such testimony as 
shall be produced. If the accused answer, the trial shall proceed upon testimony 
produced as in criminal cases, and the accused shall be entitled to be confronted 
with the witnesses against him; but such trial shall be by the court, or, in its discre¬ 
tion, upon application of the accused, a trial by jury may be had as in any criminal 
case. If the accused be found guilty judgment shall be entered accordingly, pre¬ 
scribing the punishment. 

“Sec. 5. That the testimony taken on the trial of any accusation of indirect con¬ 
tempt may be preserved by bill of exceptions, and any judgment of conviction there¬ 
for may be reviewed upon direct appeal to or by writ of error from the Supreme Court 
and affirmed, reversed, or modified, as justice may require. Upon allowance of an 
appeal or writ of error execution of the judgment shall be stayed, upon the giving of 


6 


CONTEMPTS OF COURT. 


Buch bond as may be required by the court or a judge thereof, or by any justice of 
the Supreme Court. 

“Sec. 6. That the provisions of this act shall apply to all proceedings for contempt 
in all courts of the United States except the Supreme Court; but this act shall not 
affect any proceedings for contempt pending at the time of the passage thereof.” 

The following is a copy of the report on the Ray bill or substitute 
and embraces a copy of the bill itself: 

[House Report No. 2471, Fifty-fourth Congress, second session.] 

The Committee on the Judiciary, having carefully considered Senate bill 2984, 
report as follows: 

The right and power of courts to punish for contempts is inherent and absolutely 
essential to the existence of the court as such. (Rapalje on Contempts, etc.) Its 
exercise is more frequent in chancery practice, it being, in many cases, the only way 
in which a court of equity can enforce its orders and decrees. 

This power is not lightly to be interfered with or curtailed, and very little legislation 
has been attempted or deemed necessary on the subject. 

Section 725 of the Revised Statutes of the United States provides as follows: 

“The said courts shall have power to impose and administer all necessary oaths, 
and to punish, by fine or imprisonment, at the discretion of the court, contempts of 
their authority: Provided , That such power to punish contempts shall not be construed 
to extend to any cases except the misbehavior of any person in their presence, or so 
near thereto as to obstruct the administration of justice, the misbehavior of any of the 
officers of said courts in their official transactions, and the disobedience or resistance 
by any such officer, or by any party, juror, witness, or other person, to any lawful writ, 
process, order, rule, decree, or command of the said courts.” 

In fact this is but declaratory of the common law, and is restrictive if anything. 
Section 1070 (Rev. Stat. U. S.) expressly confers this power on the Court of Claims. 

The power is recognized in consular courts (sec. 4104, Rev. Stat. U. S.). It was 
given to courts in bankruptcy (sec. 4975, Rev. Stat. U. S.), to the judges at chambers 
in such proceedings. (Rev. Stat. U. S., sec. 4973.) 

Indeed it has been held that— 

“In the absence of a constitutional provision on the subject legislative bodies have 
not power to limit or even regulate the inherent power of courts to punish for con¬ 
tempts. This power being necessary to the very existence of a court, as such, the 
legislature has no right to take it away or hamper its free exercise.” (Rapalje on 
Contempts, p. 13, and cases there cited.) 

This has no application to the circuit and district courts of the United States, they 
being creatures of Congress. (Ex parte Robinson, 19 Wall., U. S., 505, 510.) 

It is a well-settled rule that that court alone in which a contempt is committed, or 
whose order or authority is defied, has power to punish it or to entertain proceedings 
to that end. (Rapalje on Contempts, p. 15.) 

_ The tendency of legislation in this country, however, has been to narrow the defini¬ 
tion of the offense, diminish the class of persons to whom it can be imputed, and restrict 
the power of the courts over it, especially by limiting their power to fine and imprison. 
(Rapalje on Contempts, p. 14, and cases there cited.) 

The Senate bill (S. 2984, passed the Senate June 10, 1896) divides contempts into 
two classes, “direct contempts” and “indirect contempts.” “Contempts committed 
during the sitting of the court, or of a. judge at chambers, in its or his presence, or so 
near thereto as to obstruct the administration of justice,” are classified as “direct con¬ 
tempts” and may be summarily dealt with and punished by the court or judge at 
chambers, while “all other” contempts are classified as “indirect contempts,” and a 
jury trial is given if demanded by the alleged offender. 

Your committee are of the opinion that a failure of a witness duly served, or of a 
juror duly summoned, to obey the mandate of the court so nearly and immediately 
affects and obstructs the due administration of justice that such offenses ought to be 
classed with direct contempts and summarily dealt with by the court or judge having 
jurisdiction. If a reasonably good excuse is offered no punishment will follow, but 
if the failure is inexcusable a jury trial would cause delay, expense, and seriously 
impede the administration of justice. Contumacious witnesses and jurors should not 
be permitted to delay the proceedings of a court. 

The proposed substitute carefully guards the rights of the accused and gives ample 
opportunity to present to the court written evidence purging himself of the alleged 
contempt. 

The Senate bill, while granting a jury trial in all cases of alleged “indirect con¬ 
tempts ” (those not committed in the presence of the court or judge at chambers), 


CONTEMPTS OF COURT. 


7 


failed to point out a procedure and seemingly left the trial for a future day and possibly 
in another court. No provision was made for obtaining a jury in case no jury was 
present, and hence great and serious delays might occur. 

Your committee think it wise that when a jury trial is demanded specific power 
shall be vested in the court to speedily obtain a jury and proceed to the trial of the 
alleged contempt. No injustice can be done the accused. Preliminary proofs are 
required; process must issue and the alleged offender be brought before the court or 
judge; a written accusation must then be made and filed; an answer is permitted, 
and a day is then fixed for the hearing. When the jury is obtained the trial is to pro¬ 
ceed as in a criminal case and upon evidence produced as in criminal cases, and the 
accused must be confronted with the witnesses against him. The manner of selecting 
the jury is pointed out and peremptory challenges provided for. 

These provisions, necessary for the reason that tne proceeding is new, can not 
result in injustice to the accused, for he is provided with every safeguard the law 
throws around alleged offenders against the criminal law. 

The provision oi the substitute, which says that interrogatories embracing the 
questions of fact material to the inquiry shall be framed by the presiding judge and 
submitted to the jury, to be by it answered in writing, while provoking some criticism, 
is, in our judgment, wise and necessary. 

When the evidence has been presented to the court and jury the question of con¬ 
tempt or no contempt will rest on the decision of the jury as to whether the accused 
has or has not done certain acts. It is not for the jury to say whether the order or 
decree of the court alleged to have been offended against is wise or unwise, lawful or 
unlawful. It is not for the jury to say whether the act done is forbidden by the order 
or decree. The court is to construe and interpret its own order, and if the act found 
by the jury to have been done (or omitted wnen the order requires the doing of an 
affirmative act) has been done or omitted, contrary to the provisions of the order, 
decree, or judgment of the court or judge, and under conditions and circumstances 
showing contumacious conduct, the court or judge should be permitted to determine 
the effect of the act or conduct complained of. 

The whole bill is restrictive upon the courts and judges, and in our judgment it 
would be unwise to impose on the jury the task of determing the single question 
‘‘guilty or not guilty” of violating the order or decree of the court. The construc¬ 
tion of a statute is always for the court and not the jury. The construction of an 
unambiguous writing is always a question of law for the court, and not a question of 
fact for the jury. So the court making the order or decree should be permitted to 
construe it; the appellate courts will reverse or modify it if wrong, but while it stands 
as the order of the court a jury should only be called on to determine the question 
whether certain acts commanded or forbidden have or have not been done. 

The passing of the determination of this question over to the jury is quite as far as 
we ought to go if we would maintain the character and dignity of our courts. When 
we have done this we have gone quite as far as just-minded men will ask us to go. 
The facts are for the jury, the law for the courts to decide. No jury cares to be bur¬ 
dened with questions of law, and the accused is safe only when the determination of 
legal propositions is left to the decision of the proper tribunal. If we go further we 
tread upon dangerous ground and may undermine our courts, the only true bulwarks 
of our liberties. 

The proposed substitute has been presented to and approved by a representative 
of five of the principal labor organizations of the country. The language is carefully 
guarded and in express terms provides that the presiding judge shall pronounce judg¬ 
ment according to law and in accordance with the findings of the jury. The jury is 
made the sole arbiter of every question of fact. These findings can not be disregarded 
or set aside by the court. No man can be pronounced guilty except on the finding 
of a jury. 

The bill further provides for preserving the testimony and for an appeal in all 
cases of indirect contempts. This is in the interest of the liberty of the citizen, and 
while we should be careful not to open the door to petty appeals made for delay ^ we 
should give every reasonable opportunity for the correction of errors when personal 
liberty is involved. 

Your committee, having carefully examined the whole question, favorably report 
the accompanying substitute for Senate bill 2984, and recommend that the whole of 
Senate bill 2984 after the enacting clause be stricken out and the following inserted 
in lieu thereof, to wit: 

“That contempts of court are divided into two classes, direct and indirect, and shall 
be proceeded against only as hereinafter prescribed. 

“Sec. 2. That contempts committed during the sitting of the court or of a judge at 
chambers, in its or his presence or so near thereto as to obstruct the administration 
of justice, or by neglecting or refusing to obey the mandate of any lawful subpoena 


8 


CONTEMPTS OF COURT. 


to attend any court or before a judge or commissioner and testify as a witness or 
produce books, documents, or records, or by neglecting or refusing to obey the man¬ 
dates of a lawful summons or subpoena to attend and serve as a juror in any court or 
authorized proceeding, are direct contempts. All others are indirect contempts. 

“Sec. 3. That a direct attempt may be punished summarily without written accu¬ 
sation against the person arraigned, but if the court or judge at chambers shall 
adjudge him guilty thereof a judgment shall be entered of record in which shall be 
specified the conduct constituting such contempt, with a s utement of whatever 
defense or extenuation the accused offered thereto and the sentence of the court 
thereon; but when the alleged contempt consists in neglecting or refusing to obey 
the mandates of a subpoena or summons to attend as a witness and give evidence or 
produce books, papers, or documents, or to attend as a juror, due proof of the lawful 
service of such subpoena or summons shall first be filed and the contumacious witness 
or juror allowed to file written proofs by affidavit denying such service or giving 
excuses for the neglect or failure to obey such mandates, and thereupon the court 
may proceed to a hearing of the alleged contempt. * 

“Sec. 4. That upon the return of an officer on process or an affidavit duly filed, 
showing any person guilty of indirect contempt, a writ of attachment or other law¬ 
ful process may issue and such person be arrested and brought before the court or 
judge at chambers; and thereupon a written accusation setting forth succintly and 
clearly the facts alleged to constitute such contempt shall be filed and the accused 
required to answer the same, by an order which shall fix the time therefor, and also 
the time and place for hearing the matter; and the court or judge at chambers may, 
on proper showing, extend the time so as to give the accused a reasonable oppor¬ 
tunity to purge himself of such contempt. After the answer of the accused, or if 
he refuse or fail to answer, the court or judge at chambers may proceed at the time 
so fixed to hear and determine such accusation upon such testimony as shall be pro¬ 
duced. If the accused answer, the trial shall proceed upon testimony produced as 
in criminal cases, and the accused shall be entitled to be confronted with the wit¬ 
nesses against him; but if a trial by jury is not demanded, such trial shall be by 
the court without the intervention of a jury if the alleged contempt consists in the 
.violation of an order or process of the court, or by a judge at chambers in case the 
alleged contempt consists in the violation of an-order or lawful process granted by 
a judge at chambers, and upon application of the accused, a trial by jury shall be 
had as in any criminal case. In case an application is made for a trial by jury and the 
alleged offender is entitled thereto under the provisions of this act, the court or 
judge may impanel a jury for the trial of the question from the jurors then in attend¬ 
ance, or send the case to a term of the court for trial at a future day, or if no jury is 
in attendance the court or judge at chambers, as the case may be, may cause a 
sufficient number of jurors to be selected and summoned as provided by law to 
attend at the time and place fixed for the trial of such alleged contempt, from which 
panel of jurors a jury for the trial of the case shall be selected in the manner jurors 
are selected for the trial of misdemeanors, and the plaintiff and defendant in the 
proceeding shall each be entitled to three peremptory challanges, and the trial shall 
then proceed as in case of misdemeanor: Provided , however, That in each case inter¬ 
rogatories shall be framed by the judge presiding at the trial, which shall embrace 
the questions of fact material to the inquiry, and be submitted to the jury, to be 
by it answered in writing, and to each interrogatory the jury shall separately answer 
in writing, over their signatures, and in case the jury shall answer any interrogatory 
in the affirmative the fact therein brought in question shall be deemed established. 
On the findings of the jury in answer to such interrogatories the court or judge shall 
proceed to pronounce judgment in accordance therewith according to law. If the 
accused be adjudged guilty judgment shall be entered accordingly, prescribing the 
punishment. 

“Sec. 5. That the testimony taken on the trial of any accusation of indirect con¬ 
tempt may be preserved by bill of exceptions, and any judgment of conviction 
therefor may be reviewed upon direct appeal to or by writ"of error from the Supreme 
Court and affirmed, reversed, or modified as justice may require. Upon allowance of 
an appeal or writ of error execution of the judgment shall be stayed upon the giving 
of such bond as may be required by the court or a judge thereof, or by any justice 
of the Supreme Court. 

“Sec. 6. That the provisions of this act shall apply to all proceedings for contempt 
in all courts of the United States except the Supreme Court; but this act shall not 
affect any proceedings for contempt pending at the time of the passage thereof.” 


CONTEMPTS OF COURT. 


9 


[House Report No. 2471, part 2, Fifty-fourth Congress, second session.] 

VIEWS OF THE MINORITY. 

[To accompany S. 2984.] 

The undersigned members of the Committee on the Judiciary, being unable to agree 
with the committee in its action upon the bill (S. 2984) entitled “An act in relation to 
contempts of courts,” wish to state briefly some of the reasons for our dissent. 

It is evident that legislation concerning contempts of courts is suggested by a belief 
that the existing law or practice upon the subject is such that there is need of improve¬ 
ment. What, then, is the supposed defect? 

Are the Federal tribunals wanting in power to punish for contempts of court? Or is 
legislation demanded or desirable to correct abuse in the exercise by some of these 
tribunals of ample powers already possessed by them? 

There is but one answer—neither reason nor excuse for legislation “in relation to 
contempts of courts’ ’ can be found, except upon the theory of an abuse by some of the 
courts of the power which all of them have in large measure to punish summarily such 
contempts. 

Then there should be no legislation at all upon this subject, or there should be legis¬ 
lation to circumscribe the powers or reform the practice of the courts and strengthen 
the safeguards of the citizen. 

Viewed thus, we believe the amendment, by way of substitute, proposed by the 
committee should be rejected, and the Senate bill should be passed. 

The committee have included in the classification of what are called “direct con¬ 
tempts’ ’ failure or refusal to obey a subpoena for witnesses or a summons for jurors. If 
such failure Or refusal amounts to a ‘ ‘direct’ ’ contempt, it is not easy to perceive how 
or why a failure or refusal to obey any other lawful command of a court, whether affirm¬ 
ative or negative, is an indirect and not a direct contempt of court. 

But it is urged that a contempt committed in failing or refusing to obey a subpoena 
for witnesses or a summons for jurors should be punished summarily, as direct con¬ 
tempts are punished. Direct contempts, according to the Senate bill, are ‘ ‘contempts 
committed during the sitting of the court or of a judge at chambers, in its or his pres¬ 
ence or so near thereto as to obstruct the administration of justice.” 

About this definition is a degree of accuracy which must commend it to the favorable 
consideration of lawyers, while the committee’s enlargement of this definition intc 
that, which they offer as constituting direct contempts may, perhaps, be regarded by 
legal lexicographers as a novelty. 

It is submitted that such contempts as lie in disregard of a subpoena or summons may, 
and in practice would, be dealt with summarily under the Senate bill if it were law. 
For instance, there would be no trial if the person charged with being guilty of such a 
contempt should admit that he neglected or refused to render obedience to the com¬ 
mand of the subpoena or summons. In such case the “written accusation” mentioned 
in the Senate bill and in the committee substitute could be confined within the limits 
of a single short sentence. There would never be a trial upon a plea of guilty. 
Besides, a few words inserted in the Senate bill, by way of amendment, would directly, 
in terms, provide for the summary punishment of such indirect contempts as direct 
contempts, properly so called, may be punished. 

The object of the Senate bill is to afford persons charged with indirect contempts a 
trial by jury, as in criminal cases. The effect of the committee substitute, if enacted 
into law, would be to give the accused the form of a jury trial, with the substance with¬ 
drawn. For, instead of accepting the plan of the real jury trial, as embodied in the 
Senate bill, the committee provide for the submission to the jury of interrogatories, 
prepared by the court, and to be answered by the jury in writing. Upon the answers 
the court will determine the guilt or innocence of the accused. About the question 
of guilt or innocence the jury, according to the committee, shall have nothing to say. 
That shall be determined by the court, which is to continue to be not only judge and 
jury, but accuser as well. 

Believing that the citizen should be better protected in his rights in proceedings for 
alleged contempts of court, and believing also that additional protection for him is to 
be found in real and not mock jury trials, we oppose the recommendation of the com¬ 
mittee, and favor the passage of the Senate bill. For while that bill might be improved 
by amendment in furtherance of its object and not against it,, we are of opinion that 
unless the House pass the Senate bill as it is there will be no legislation upon the sub¬ 
ject by the present Congress. 

If, however, the committee substitute is to be passed instead of the Senate bill, there 
should surelv be taken out of it the provision for interrogatories to the jury and special 
findings by the jury, and it should be clearly provided that the verdict of the jury 
shall be “guilty ” or “not guilty;” nothing more, nothing less. 


10 


CONTEMPTS OF COURT. 


The bills now before the committee which suggest the regulation of 
trials in contempt cases are as follows: 


[H. R. 13578, Sixty-second Congress, first session.] 

(By Mr. Clayton.) 

A BILL To define and punish contempts of court. 

Be it enacted by the Senate and Bouse of Representatives of the United States of America 
in Congress assembled , That contempts of courts are divided into two classes, direct 
contempts and indirect contempts, as hereinafter defined, and shall be proceeded 
against as hereinafter prescribed and not otherwise. 

Sec. 2. Direct contempts are— 

(a) Contempts committed during the sitting of the court or of a judge at chambers, 
in the presence of the court or in ^he presence of the judge at chambers, or so near 
thereto as to obstruct the administration of justice; 

(b) The failure or refusal to obey the mandate of a lawful subpoena to attend any 
court or before a judge or a commissioner and testify as a witness, or to produce books, 
documents, writings, papers, or records; 

(c) The failure or refusal to obey the mandate of a lawful summons to attend and 
serve as a juror in any court; 

(d) The misbehavior of any of the officers of the court in their official transactions, 
or the disobedience or resistance by any such officer to any lawful writ, process, order, 
rule, decree, or command of said court or judge at chambers. 

All other contempts are indirect contempts. 

Sec. 3. That a direct contempt may be punished summarily, without written 
accusation against the person arraigned for such direct contempt. If the accused 
person shall be adjudged guilty of a direct contempt, judgment accordingly shall be 
entered of record, in which shall be set forth the conduct constituting such contempt, 
with a statement of the defense or extenuation which the accused offered to the charge 
of such direct-contempt and the sentence of the court in the case. 

Sec. 4. That'upon return of a proper officer on lawful process, or upon affidavit duly 
filed, showing any person guilty of an indirect contempt, appropriate and lawful 
process may issue for the arrest of such person, and such person shall be brought before 
the court. Thereupon a written accusation, setting forth succinctly and clearly the 
facts alleged to constitute such indirect contempt, shall be filed, and the accused shall 
be required to answer the same by an order which shall fix the time for such answer, 
and which shall also fix the time and place for the trial of the case. The court may, 
on a proper showing, extend the time so as to afford the accused reasonable oppor¬ 
tunity to purge himself of such contempt. Before the trial, and until final determina¬ 
tion of the case, the accused shall be admitted to bail. If the accused has failed or 
refused to answer, the court may proceed at the time fixed for the trial of such case to 
hear and determine such accusation, and upon such evidence as shall be produced. 
If the accused has answered, the trial shall proceed upon evidence produced as in a 
criminal case, and the accused shall be entitled to have and examine witnesses in his 
own behalf. Such trial shall be by the court, unless the accused person shall demand 
a trial by jury, and in case of such demand a trial by jury shall be had as in a criminal 
case. If the accused shall be found guilty, judgment shall be entered accordingly, 
prescribing the punishment. 

Sec. 5. That the evidence taken on the trial of any person accused of indirect con¬ 
tempt may be preserved by bill of exceptions, and any judgment of conviction in a 
case of indirect contempt may be reviewed upon appeal, or by writ, of error, as now 
provided by law in criminal cases, and may be affirmed, reversed, or modified, as 
justice may require. Whenever an appeal is taken or a.writ of error granted, execu¬ 
tion of the judgment shall be stayed, and the accused person shall be admitted to bail 
in such sum as may be required by the court, or by a United States judge, or by the 
Chief Justice or an Associate Justice of the Supreme Court of the United States. 

Sec. 6. That the provisions of this act shall apply to all proceedings for contempt 
in all courts of the United States except the Supreme Court: Proiided, That this act 
shall not affect any contempt proceedings pending at the time of the passage of this 
act. 


CONTEMPTS OF COUET. 


11 


[H. R. 9, Sixty-second Congress, first session.] 

(By Mr. Bartlett.) 

A BILL To regulate the trial of contempts of courts. 

Be it enacted by the Senate and House of Representatives of the United States of America 
in Congress assembled , That contempts of court are divided into two classes, direct and 
indirect, and shall be proceeded against only as hereinafter described. 

Sec. 2. That contempts committed during the sitting of the court or of a judge at 
chambers, in its or his presence, or so near thereto as to obstruct the administration of 
justice, are direct contempts. All others are indirect contempts. 

Sec. 3. That a direct contempt may be punished summarily without written accu¬ 
sation against the person arraigned, but if the court shall adjudge him guilty thereof, 
a judgment shall be entered of record, in which shall be specified the conduct con¬ 
stituting such contempt, with a statement of whatever defense or extenuation the 
accused offered thereto, and the sentence of the court thereon. But in all other cases 
of contempt of court than those provided for in this section the accused shall have the 
right of trial by jury, and upon his demand to be tried by a jury a trial by jury shall 
be had as in a criminal case. 

Sec. 4. That upon the return of an officer on process, or an affidavit duly filed, 
showing any person guilty of indirect contempt, a writ of attachment or other lawful 
process may issue and such person be arrested and brought before the court; and 
thereupon a written accusation setting forth succinctly and clearly the facts alleged 
to constitute such contempt shall be filed and the accused required to answer the 
same by an order which shall fix the time therefor and also the time and place for 
hearing the matter; and the court may,-on proper showing, extend the time so as to 
give the accused a reasonable opportunity to purge himself of such contempt. But 
pending the trial, and until the final trial and termination of the case, the accused 
shall be admitted to bail in such sum as the court may direct. After the answer of 
the accused, or if he refuse or fail to answer, the court may proceed at the time so 
fixed to hear and determine such accusation upon such testimony as shall be pro¬ 
duced. If the accused answer, the trial shall proceed upon testimony produced as 
in criminal cases, and the accused shall be entitled to be confronted with the wit¬ 
nesses against him. A trial by jury shall be had as in any criminal case, unless the 
accused shall, in writing, waive a jury, and in that case such trial shall be by the court. 
If the accused be found guilty, judgment shall be entered accordingly, prescribing 
the punishment. 

Sec. 5. That the testimony taken on the trial of any accusation of indirect contempt 
may be preserved by bill of exceptions, and any judgment of conviction therefor may 
be reviewed upon direct appeal to or by writ of error from the Supreme Court, and 
affirmed, reversed, or modified, as justice may require. Upon allowance of an appeal 
or writ of error, execution of the judgment shall be stayed upon the giving of such 
bond as may be required by the court or a judge thereof, or by any justice of the 
Supreme Court. 

Sec. 6. That the provisions of this act shall apply to all proceedings for contempt 
in all courts of the United States except the Supreme Court. 

[H. R. 1617, Sixty-second Congress, first session.] 

(By Mr. Edwards.) 

A BILL To provide for a trial by jury of persons charged with contempt of court. 

Be it enacted by the Senate and House of Representatives of the United States of America 
in Congress assembled, That any person accused of violating or disobeying, when not 
in the actual presence or hearing of the court, or judge sitting as'such, any order of 
injunction or restraint of any nature, made or entered by any court or judge of any of 
the United States courts, shall, before penalty or punishment is imposed, be entitled 
to a trial by jury as to the guilt or innocence of the accused. In no case in any such 
courts shall a penalty or punishment be imposed for any contempt until an oppor¬ 
tunity to be heard is given. 

Sec. 2. That all acts or laws or parts of acts or laws in any wise conflicting with the 
provisions of this act are hereby repealed. 

Sec. 3. That this act shall take effect and be in force from and after its passage. 


12 


CONTEMPTS OF COURT. 


[H. R. 1720, Sixty-second Congress, first session.] 

(By Mr. Stanley.) 

A BILL Relating to punishment for contempt in Federal courts. 

Be it enacted by the Senate and House of Representatives of the United States of America 
in Congress assembled , That contempts of court are divided into two classes, direct 
and indirect, and shall be proceeded against only as herein provided. 

Sec. 2. That contempts committed during the sitting of the court, or of a judge in 
chambers, in its or his presence, or so near thereto as to obstruct the administration of 
justice, or by failing or refusing to obey the mandate of any lawful subpoena to attend 
any court, or before any judge or commissioner, and testify as a witness, or produce 
books, documents, or records," or for refusing to obey the mandate of a lawful summons 
or subpoena to attend and serve as a juror in any court or authorized proceeding, are 
direct contempts. All other contempts are indirect. 

Sec. 3. That a direct contempt may be punished summarily, without written 
accusation. Whenever any person shall be adjudged guilty of a direct contempt, the 
judge or court so finding shall enter of record the acts constituting the alleged contempt, 
and a statement of the extenuation or defense offered, if any. No person shall be 
adjudged guilty of any contempt for failure to appear as a witness or produce books, 
papers, or documents, or to attend as a juror until after the subpoena with the return of 
the duly authorized officer thereon and proof of lawful service shall have been filed. 
The contumacious witness shall be allowed to make proof denying such service or 
showing inability to obey said process, and such proof may be made by written 
affidavit. After proof heard the court may proceed to a hearing of the alleged contempt: 
Provided further , That no punishment to exceed thirty hours’ imprisonment or a fine 
of two hundred dollars shall be inflicted for any direct contempt except failure to 
attend as a witness or produce books, papers, and documents, without the empaneling 
of a jury, upon the demand of the person accused of the alleged contempt, in which 
event the trial of said cause shall be conducted as in cases of indirect contempt, as 
hereinafter provided. 

Sec. 4. That upon the return of an officer on process or an affidavit duly filed, show¬ 
ing any person guilty of indirect contempt, a writ of attachment or other lawful proc¬ 
ess may issue and such person arrested and brought before the court or judge in cham¬ 
bers; and thereupon a written accusation setting forth succinctly and clearly the 
facts alleged to constitute such contempt shall be filed, and the accused required 
to answer the same, by an order which shall fix the time therefor, and also the time 
and place for hearing the matter; and the court or judge in chambers may, on proper 
showing, extend the time so as to give the accused a reasonable opportunity to purge 
himself of such contempt. After the answer of the accused, or if he refuse or fail to 
answer, the court or judge in chambers may proceed at the time so fixed to hear and 
determine such accusation upon such testimony as shall be produced. If the accused 
answer, the trial shall proceed upon testimony produced as in criminal cases, and the 
accused shall be entitled to be confronted with the witnesses against him; but if a 
trial by jury is not demanded, such trial shall be by the court without the interven¬ 
tion of a jury, if the alleged contempt consists in the violation of an order or process 
granted by a judge in chambers, and upon application of the accused a trial by jury 
shall be had as in any criminal case. In case an application is made for a trial by 
jury, and the alleged offender is entitled thereto under the provisions of this act, 
the court or judge may empanel a jury for the trial of the question from the jurors 
then in attendance, or send the case to a term of the court for trial for a future day, or 
if no jury is in attendance the court or judge in chambers, as the case may be, may 
cause a sufficient number of jurors to be selected and summoned, as provided by law, 
to attend at the time and place fixed for the trial of such alleged contempt, from 
which panel jurors for the trial of the case shall be selected in the manner jurors are 
selected for the trial of misdemeanors, except that plaintiff and defendant in the 
proceeding shall each be entitled to five peremptory challenges, and the trial shall 
then proceed as in the case of misdemeanors. If the accused be adjudged guilty, 
judgment shall be entered accordingly, prescribing the punishment. 

Sec. 5. That the testimony taken on the trial of any accusation of indirect contempt 
may be preserved by bill of exceptions, and any judgment of conviction therefor may 
be reviewed upon direct appeal to or by writ of error from the Supreme Court, and 
affirmed, reversed, or modified, as justice may require. 

Whenever it shall appear from an affidavit made by the person charged with, an 
indirect contempt that he or she is insolvent and without the means necessary to the 
prosecution of an appeal, then such appeal shall be taken “in forma pauperis,” and 
the officer of the court whose duty it is to make a transcript of the record in such 
cases shall be paid therefor the fees allowed by law by the United States. Upon 


CONTEMPTS OF COURT. 


13 


allowance of an appeal or writ of error execution of judgment shall be stayed upon 
the giving of such bond as may be required by the court or a judge thereof, or by any 
justice of the Supreme Court. 

Sec. 6. That no agreement, combination/or contract by or between two or more 
persons to do or to procure to be done, or not to do or to procure to be done, any act 
in contemplation or furtherance of any trade dispute between employers and em¬ 
ployees, shall be deemed criminal, nor shall any alleged conspiracy predicated upon 
such agreement constitute an offense, nor shall such agreement or contract be con¬ 
sidered in restraint of trade or commerce, nor shall any restraining order or injunction 
be issued with relation thereto, nor shall any such agreement, contract, or combination 
be forbidden by any Federal court or judge or constitute any contempt of court, unless 
the act concerning which said contract, confederation, or agreement was made would 
be a crime if committed by one person. 

Sec. 7. That the provisions of this act shall apply to all proceedings for contempt 
in all courts of the United States except the Supreme Court; but this act shall not 
affect any proceedings for contempt pending at the time of the passage thereof. 

[H. R. 1722, Sixty-second Congress, first session.] 

(By Mr. Stanley.) 

A BILL Relating to punishment for contempt in Federal courts. 

Be it enacted by the Senate and House of Representatives of the United States of America 
in Congress assembled , That contempts of court are divided into two classes, direct 
and indirect, and shall be proceeded against only as herein provided. 

Sec. 2. That contempt committed during the sitting of the court, or of a judge 
in chambers, in its or his presence, or so near thereto as to obstruct the administration 
of justice, or by failing or refusing to obey the mandate of any lawful subpoena to 
to attend any court, or before any judge or commissioner, and testify as a witness, or 
produce books, documents, or records, or for refusing to obey the mandate of a lawful 
summons or subpoena to attend and serve as a juror in any court or authorized pro¬ 
ceeding, are direct contempts. All other contempts are indirect. 

Sec. 3. That a direct contempt may be punished summarily, without written accusa¬ 
tion. Whenever any person shall be adjudged guilty of a direct contempt, the judge 
or court so finding shall enter of record the acts constituting the alleged contempt, 
and a statement of the extenuation or defense offered, if any. No person shall be 
adjudged guilty of any contempt for failure to appear as a witness or produce books, 
papers, or documents, or to attend as a juror until after the subpoena with the return 
of the duly authorized officer thereon and proof of lawful service shall have been 
filed. The contumacious witness shall be allowed to make proof denying such serv¬ 
ice, or showing inability to obey said process, and such proof may be made by written 
affidavit. After proof heard the court may proceed to a hearing of the alleged con¬ 
tempt: Provided further , That no punishment to exceed thirty hours’ imprisonment 
or a fine of two hundred dollars shall be inflicted for any direct contempt except fail¬ 
ure to attend as a witness or produce books, papers, and documents, without the 
empaneling of a jury, upon the demand of the person accused of the alleged contempt, 
in which event the trial of said cause shall be conducted as in cases of indirect con¬ 
tempt, as hereinafter provided. 

Sec. 4. That upon the return of an officer on process or an affidavit duly filed, 
showing any person guilty of indirect contempt, a writ of attachment or other lawful 
process may issue and such person arrested and brought before the court or judge in 
chambers; and thereupon a written accusation, setting forth succinctly and clearly 
the facts alleged to constitute such contempt shall be filed, and the accused required 
to answer the same, by an order which shall fix the time therefor, and also the time and 
place for hearing the matter; and the court or judge ip chambers may, on proper show¬ 
ing, extend the time so as to give the accused a reasonable opportunity to purge himself 
of such contempt. After the answer of the accused, or if he refuse or fail to answer, 
the court or judge in chambers may proceed at the time so fixed to hear and determine 
such accusation upon such testimony as shall be produced. If the accused answer, 
the trial shall proceed upon testimony produced as in criminal cases, and the accused 
shall be entitled to be confronted with the witnesses against him; but if a trial by jury 
is not demanded, such trial shall be by the court without the intervention of a jury, 
if the alleged contempt consists in the violation of an order or process granted by a judge 
in chambers, and upon application of the accused a trial by jury shall be had as in 
any criminal case. In case an application is made for a trial by jury, and the alleged 
offender is entitled thereto under the provisions of this act, the court or judge may 
empanel a jury for the trial of. the question from the jurors then in attendance, or send 


14 


CONTEMPTS OF COURT. 


the case to a term of the court for trial for a future day, or if no jury is in attendance the 
court or judge in chambers, as the case may be, may cause a sufficient number of jurors 
to be selected and summoned, as provided by law, to attend at the time and place fixed 
for the trial of such alleged contempt, from which panel of jurors for the trial of the case 
shall be selected in the manner jurors are selected for the trial of misdemeanors, except 
that plaintiff and defendant in the proceeding shall each be entitled to five peremptory 
challenges, and the trial shall then proceed as in the case of misdemeanors. If the 
accused be adjudged guilty, judgment shall be entered accordingly, prescribing the 
punishment. 

Sec. 5. That the testimony taken on the trial of an accusation of indirect contempt 
may be preserved by bill of exceptions, and any judgment of conviction therefor may 
be reviewed upon direct appeal to or by writ of error from the Supreme Court, and 
affirmed, reversed, or modified, as justice may require. 

Whenever it shall appear from an affidavit made by the person charged with an in¬ 
direct contempt that he or she is insolvent and without the means necessary to the 
prosecution of an appeal, then such appeal shall be taken “in forma pauperis,” and 
the officer of the court whose duty it is to make a transcript of the record in such cases 
shall be paid therefor the fees allowed by law by the United States. Upon allowance 
of an appeal or writ of error execution of judgment shall be stayed upon the giving of 
such bond as may be required by the court or a judge thereof, or by any justice of the 
Supreme Court. 

Sec. 6. That no agreement, combination, or contract by or between two or more 
persons to do or to procure to be done, or not to do or to procure to be done, any act 
in contemplation or furtherance of any trade dispute between employers and em¬ 
ployees, shall be deemed criminal, nor shall any alleged conspiracy predicated upon 
such agreement constitute an offense, nor shall such agreement or contract be consid¬ 
ered in restraint of trade or commerce, nor shall any restraining order or injunction 
be issued with relation thereto, nor shall any such agreement, contract, or combina¬ 
tion be forbidden by any Federal court or judge or constitute any contempt of court, 
unless the act concerning which said contract, confederation, or agreement was made 
would be a crime if committed by one person. 

Sec. 7. That the provisions of this act shall apply to all proceedings for contempt 
in all courts of the United States except the Supreme Court; but this act shall not 
affect any proceedings for contempt pending at the time of the passage thereof. 

[H. It. 4422, Sixty-second Congress, first session.] 

(By Mr. Kendall.) 

A BILL To regulate the trial of cases of contempt. 

Be it enacted by the Senate and House of Representatives of the United States of America 
in Congress assembled, That in all proceedings for the punishment of contempts not 
committed in the immediate presence of the court or judge, or in such close prox¬ 
imity thereto as to interfere with the regular and orderly administration of justice, 
the accused shall be entitled, if he so demand, to a trial by jury as in ordinary crim¬ 
inal cases. 

Sec. 2. That before any process shall issue in such case a written information shall 
be filed, stating in detail the exact facts or circumstances complained of as consti¬ 
tuting the alleged contempt. Thereupon a warrant shall issue and the accused shall 
be brought before the court, where he shall be advised of the precise nature of the 
charge against him and be allowed reasonable time and opportunity to make prep¬ 
aration for trial. He may answer, setting forth such defense or extenuation as he 
may have, and if the same be deemed sufficient, he may be discharged. If such 
defense or extenuation be deemed ipsufficient, or if he fail to answer, the trial shall 
proceed in all respects as in ordinary criminal cases. 

[H. R. 4688, Sixty-second Congress, first session.] 

(By Mr. Henry of Texas.) 

A BILL In relation to contempts of court. 

Be it enacted by the Senate and House of Representatives of the United States of America 
in Congress assembled, That contempts of court committed during the sitting of the 
court, or of a judge at chambers, in its or his presence or so near thereto as to obstruct 
the administration of justice, are direct contempts. All others are indirect contempts. 

Sec. 2. That a direct contempt may be punished summarily without written 


CONTEMPTS OF COURT. 


15 


accusation against the person arraigned, but if the court shall adjudge him guilty 
thereof a judgment shall be entered of record in which shall be Specified the conduct 
constituting such contempt, with a statement of whatever defense or extenuation the 
accused offered thereto and the sentence of the court thereon. 

Sec. 3. That upon the return of an officer on process or an affidavit duly filed, show¬ 
ing any person guilty of indirect contempt, a writ of attachment or other lawful process 
may issue and such person be arrested and brought before the court; and thereupon 
a written accusation, setting forth clearly and succinctly the facts alleged to consti¬ 
tute such contempt, shall be filed and the accused required to answer the same, by 
an order which shall fix the time therefor, and also the time and place for hearing the 
matter; and the court may, on proper showing, extend the time so as to give the 
accused a reasonable opportunity to purge himself of such contempt. After the 
answer of the accused, or if he refuse or fail to answer, the court may proceed at the 
time so fixed to hear and determine such accusation upon such testimony as shall 
be produced. If the accused answers, the trial shall proceed upon testimony pro¬ 
duced as in criminal cases, and the accused shall be entitled to be confronted with 
the witnesses against him; but such trial shall be by the court, or, upon application 
of the accused, a trial by jury shall be had as in any criminal case. If the accused 
be found guilty, judgment should be entered accordingly, prescribing the punishment. 

Sec. 4. That the testimony taken on the trial of any accusation of indirect con¬ 
tempt may be preserved by bill of exceptions, and any judgment of conviction there¬ 
for may be reviewed upon direct appeal to, or by writ or error from, the Supreme 
Court, and affirmed, reversed, or modified, as justice may require. Upon allowance 
of an appeal or writ of error, execution of the judgment shall be stayed, upon the 
giving of such bond as may be required by the court or a judge thereof, or by ainy 
justice of the Supreme Court. 

Sec. 5. That the provisions of this act shall apply to all proceedings for contempt 
in all courts of the United States except the Supreme Court. 


[H. R. 5605, Sixty-second Congress, first session.] 

(By Mr. Thomas.) 

A BILL To determine the jurisdiction of United States courts in matters of contempt, and to regulate 

the trial and punishment of same. 

Be it enacted by the Senate and House of Representatives of the United States of America 
in Congress assembled , That no court or judge of any United States court shall, for con¬ 
tempt committed in the presence of the court, impose upon the offender a fine exceed¬ 
ing fifty dollars, or imprison him exceeding five days, without the intervention of a 
jury, if demanded by the accused, but such trial shall be by the court; or upon appli¬ 
cation of the accused a trial by jury shall be had as in any criminal case. 

Sec. 2. That no court or judge of any United States court shall, for contempt com¬ 
mitted not in the presence of the court, impose upon the offender any fine or imprison¬ 
ment without the intervention of a jury if demanded by the accused, but such trial 
shall be by the court; or upon application of the accused a trial by jury shall be had 
as in any criminal case; and in all trials by jury arising under this act the truth of the 
matter may be given in evidence. 

Sec. 3. That no court or judge of any United States court shall proceed by process 
of contempt or impose a fine against or imprison any person who shall by words or 
writing animadvert upon, comment on, or criticize, or examine into the proceedings 
or conduct of such court or judge by words spoken or writing published not in the 
presence of such court or judge in the courthouse during the sitting of court; but 
nothing herein shall be construed to prevent any court or judge thereof from proceed¬ 
ing by indictment against any person writing or publishing a libel or slanderous 
words of and concerning such court or judge in relation to his-judicial conduct in 
court. 

Sec. 4. That if upon a trial by jury under this act the accused be found guilty he 
shall be fined in any sum not exceeding five hundred dollars or imprisoned any length 
of time not exceeding six months, in the discretion of the court. If a jury trial be not 
demanded by the accused he may be fined by the court in any sum not exceeding 
five hundred dollars or imprisoned any length of time not exceeding six months, in 
the discretion of the court. 

Sec. 5. That the provisions of this act shall not apply to the Supreme Court of the 
United States. 

Sec. 6. That all laws and parts of laws inconsistent with this act are hereby repealed. 

Sec. 7. That this act shall take effect and be in force from and after its passage. 


16 


CONTEMPTS OF COURT. 


[H. R. 9435, Sixtj r -second Congress, first session.] 

(By Mr. Kendall.) 

A BILL To regulate the issuance of injunctions and to provide for a trial by jury in proceedings for the 

punishment of contempts. 

Be it enacted by the Senate and House of Representatives of the United States of America 
in Congress assembled, That no restraining order or injunction shall be issued by any 
court of the United States, or the judge thereof, in any dispute between an employer 
and employees, or between employees, or between persons employed and persons 
seeking employment, or involving the terms or conditions of employment, unless such 
restraining order or injunction shall be clearly necessary to prevent such irreparable 
injury to property or property rights as can not be adequately redressed at law, and 
then only after reasonable previous written notice of the application therefor shall 
have been served upon the person or persons sought to be restrained or enjoined and 
he or they shall have opportunity to appear in person or with attorney and traverse 
the allegations of said application. In all such cases the application for restraining 
order or injunction shall be in writing, duly verified, and shall state explicitly the facts 
upon which relief is demanded, including a description of the property or property 
rights involved. 

Sec. 2. That no agreement between two or more persons to do or not to do any act 
or thing with reference to any dispute between an employer and employees, or 
between employees, or between persons employed and persons seeking employment, 
or involving the terms or conditions of employment, shall be held to constitute a con¬ 
spiracy unless the act or thing agreed to be done or not to be done would be unlawful 
on the part of a single individual; nor shall the entering into or carrying out of any 
such agreement be restrained or enjoined unless such act or thing agreed to be done 
or not to be done would be subject to be restrained or enjoined on the part of a single 
individual. 

Sec. 3. That before any process shall issue in a proceeding for the punishment of 
any contempt not committed in the immediate presence of the court or judge, or in 
such close proximity thereto as to interfere with the regular and orderly adminis¬ 
tration of justice, a written information shall be filed stating in detail the particular 
facts or circumstances complained of as constituting the alleged contempt. There¬ 
upon a warrant shall issue and the accused shall be presented before the court, where 
he shall be advised of the precise nature of the charge against him and be allowed 
reasonable time and opportunity to make preparation for trial. Unless he enter a 
plea of guilty, the trial shall proceed before a jury in all respects as in ordinary criminal 
cases. 

Mr. Sterling. Do I understand that the Senate passed the Hill 

bill ? 

The Chairman. Yes, the Hill bill passed the Senate, with the 
amendment I have mentioned, on June 10, 1896. 

Mr. Sterling. But it was not acted on in the House ? 

The Chairman. It came to the House and was not acted on in the 
House, but was reported from the committee by Mr. Ray, who, in 
his report, offered the Ray bill as a substitute. 

Mr. Norris. Referring to the compilation you have on the statutes 
on contempt, you have only one copy of it, I presume ? 

The Chairman. It is simply a typewritten document. 

Mr. Norris. I was going to suggest, as it appears to be a valuable 
document, it might be well to have it printed. 

The Chairman. I think it may be of some value and the suggestion 
to print it in connection with the hearing will, without objection, be 
adopted. 

Mr. Floyd. Does the compilation referred to include only the 
existing laws of the different States on the subject of contempt, or a 
history of such laws? 

The Chairman. It only includes the statutes as they, now stand. 
It would probably make it too long if we undertook to run down the 
history of contempt legislation in each State. We only want to know 
what the State law on the subject of contempt is to-day. 


CONTEMPTS OF COURT. 


17 


Mr. -Floyd. As I understand it, your statement includes all the 
Federal statutes on the subject from the beginning and only the 
existing State statutes ? 

The Chairman. Yes. I thought it was proper for the committee 
to have all the United States statutes as a part of the history of legis¬ 
lation on this subject by Congress, and I thought that perhaps I could 
aid the committee by suggesting what States have statutes on this 
subject and what they are. Now, for instance, in this matter of jury 
trial in indirect contempt cases, it is true, as Mr. Thomas of Kentucky , 
will tell you, that wherever in Kentucky a fine of more than $30 is 
imposed the man has a right to a jury trial. In the State of Kansas 
there is substantially a division of contempts into direct and indirect 
contempts, and in some cases a jury trial. Where a man is ordered to 
pay over money in the State of Georgia he is entitled to a jury trial. 
In Colorado, in certain cases, he is entitled to a trial by jury when 
charged with contempt, and in Oklahoma he is entitled to a jury trial 
in certain cases. West Virginia provides for a jury trial in certain 
cases of contempt. The object or referring to the Hill bill, the Kay 
substitute, and to State statutes was to show that in certain cases of 
contempts of court the right of trial by jury is not a novel suggestion. 

Mr. Thomas You can not fine a man over $30 or put him in jail 
over six hours without a jury trial in Kentucky. 

Mr. Henry. How long has that law been in operation ? 

Mr. Thomas. Ever since I can remember. 

The Chairman. I was going to say that when these hearings are 
printed I shall embody, unless there is objection, the preliminary 
statement I have made, and I shall also embody in the publication 
the Federal statutes and these State statutes on the subject of con¬ 
tempt, so that the hearings and this other matter may be printed in 
convenient form if it is the wish of the committee to do it. 

Mr. Thomas. Let me tell you another thing that happened in the 
United States court in Kentucky before Judge Cox. He fined and 
imprisoned several men for violating an injunction that they had never 
heard of. No process of any kind had ever been served on them. 
The judge stated that it was a general order of the court and supposed 
that they had heard of it. Fie stuck them in jail; and right dowm in 
my district now they have several men up for contempt wdio are not 
parties to the bill of complaint, and upon whom no process of any kind 
or character has been served. They have had no process of any kind 
or character served upon them; it seems to me that such proceedings 
ought to be regulated. 

Mr. Nye. Is there not some gentleman present who washes to be 
heard on this subject? 

The Chairman. Yes. 

Mr. Nye. Well, it seems to me that we ought to take this matter 
up in order. 

The Chairman. We will hear from Mr. Ralston first, if that be the 
pleasure of the committee. I will say for the benefit of the committee 
that Mr. Ralston appeared before the Committee on the Judiciary of 
the House in March, 1900, I think it was, and gave his views on a 
measure which, I believe, was somewhat cognate to this. Having 
been a member of the committee at that time and having heard 
Mr. Ralston, I took the liberty the other day of informing him that 

20502—11-2 


18 


CONTEMPTS OF COURT. 


we would have this hearing, and that if it would be convenient for 
him to come before the committee I would be glad for him to do so. 
In response to that invitation he is here this morning. Mr. Ralston, 
please give the reporter your full name and address. 

STATEMENT OF MR. JACKSON H. RALSTON, BOND BUILDING, 
WASHINGTON, D. C. 

Mr. Ralston. Mr. Chairman, as you have stated, I appear before 
the committee to-day at the suggestion and request of the chairman. 
I am glad that the chairman made that statement, because I do not 
want it understood for a moment that I am appearing now in my 
capacity as an attorney in any particular case, because it happens to 
be my fortune to have been identified with one contempt case that 
has been very prominent in the public eye. 

The Chairman. That was not in my mind at the time. I simply 
recalled that you had once appeared before the Committee on the 
Judiciary and addressed them on this subject. 

Mr. Ralston. But I wanted to make that disclaimer on my own 
account. 

Mr. Carlin. The case you have referred to is the Gompers con¬ 
tempt case, is it not ? 

Mr. Ralston. Yes, sir; and in whatever I have to say, therefore, I 
do not want to be considered as expressing the views or ideas of my 
clients, with whom I have had no consultation, with reference to the 
bill pending before the committee. If I may go directly to the bill, 
and certain phases of it that appealed to me in reading it over, I will 
say that there are, I think, many good ideas embodied in the bill ; but, 
if the chairman will pardon me, it seems to me that the bill does not 
completely cover the subject, and that it is a subject which ought not 
to be treated by piecemeal. Of course, at the present time our 
national legislation upon the subject is entirely deficient. I say 
entirely deficient, although there is section 725 of the Revised 
Statutes, but I believe that is all there is on the subject in the way of 
legislation. Now, the first thing which occurred to me in looking 
over the bill was this, that contempts of court are divided into two 
classes, direct and indirect contempts. Now, that does not complete 
the entire nomenclature, because we have now very well defined by 
the Supreme Court—and it was done in the recent" presentation, or, 
rather, as the result of the presentation of what is known as the 
Gompers case—as I say, we have now very well defined by the 
Supreme Court the difference between civil and criminal contempt. 
Now, indirect contempt may be of either one of these two classes— 
that is, either civil or criminal—and it might very well be the case 
that the procedure which would be appropriate for a civil contempt 
would be entirely inappropriate and improper for what is known as a 
criminal contempt. I may say in brief that the purpose of the civil 
contempt is regarded as remedial to the parties bringing the con¬ 
tempt before the court by claiming to have been directly injured by 
the violation of the order of the court, whereas criminal contempt 
pertains more largely to conduct having criminal characteristics. It 
is regarded as a direct insult to the court, and interferes directly with 
the powers of the court as such. 


CONTEMPTS OF COURT. 


19 


The Chairman. Let me ask you right there this question: The 
party charged with an indirect contempt, of course, is to get a jury 
trial, and under this bill that object is accomplished, is it not? 

Mr. Ralston. Yes, sir; I think that at least is accomplished by 
this bill, but the procedure to be taken in the two classes of con¬ 
tempt is different. As I say, a civil contempt is a remedy for the 
benefit of the persons injured and a criminal contempt is an outrage 
committed against public law. Now, that is something which 
enters into the nature of the punishment, as was pointed out in the 
case to which I have alluded. The proposed bill defines direct con¬ 
tempts in very much the manner that they are defined in section 725 
of the Revised Statutes. 

Mr. Sterling. In your discussion of the Gompers case, I believe 
you stated that was held to be a civil contempt ? 

Mr. Ralston. I merely referred to the facts of that case. I am 
not expressing any opinion on it in any way. 

Mr. Sterling. But I understood that that was the definition 
given ? 

• Mr. Ralston. I will say this: This position was clearly taken by 
the Supreme Court in that case—in brief, the decision upon this 
point was about to this effect: That proceeding was brought by the 
Bucks Stove & Range Co., charging Messrs. Gompers, Mitchell, and 
Morrison with having been guilty of contempt of orders of the court 
and praying relief against them, and also for general relief. A large 
amount of testimony was taken, and the Supreme Court, in con¬ 
sidering the case, reviewed particularly the application for contempt. 
The petition for contempt, the nature of the remedies sought, the 
manner in which the testimony had been taken in the case—it was 
treated as if it was an ordinary equity case in the taking of the testi¬ 
mony—and other factors were considered, and they came to the 
conclusion that the proceedings which were inaugurated by the 
Bucks Stove & Range Co. was intended to be remedial to the com¬ 
pany, and to restore to them something of the loss to which they were 
alleged to have been subjected by reason of the conduct of the re¬ 
spondents. When it came to the infliction of the penalty, however, 
Mr. Justice Wright directed the imprisonment of the respondents, 
and the Supreme Court said that that was a punishment which would 
have been entirely proper if the proceedings had been criminal in their 
nature—that is to say, it was not to remedy an assault, or supposed 
assault, upon the dignity of the court—but that, inasmuch as the 
intent and purpose of the Bucks Stove & Range Co.'s proceeding 
was to afford a remedy to that company, and such a remedy as would 
prevent the recurrence of similar supposed injuries, the proceeding 
m that case was really civil in its nature, and that Judge Wright erred 
when he inflicted upon the respondents a purely criminal penalty. 
In other words, the decision held that it was no relief to the Bucks 
Stove & Range Co. to say that these particular respondents should 
go to jail. 

Mr. Carlin. But did not the court lay down a method of procedure 
by which the lower court could proceed, even in that matter, and 
impose a penalty for criminal contempt ? Did not the Supreme Court 
in that case arrive at a method by which the lower court could even in 
that very case impose a criminal penalty by a different method of 
procedure ? 


20 


CONTEMPTS OF COURT. 


Mr. Ralston. The Supreme Court did not discuss the matter of 
penalties. That refers doubtless to the penalties to be imposed in 
civil contempt cases, but I take it from the precedents and from some 
of the language of that decision that the sort of penalty which could 
have been imposed would be something like this: The court could 
have imposed a fine upon Gompers, Mitchell, and Morrison for the 
benefit of the Buck’s Stove & Range Co., and, possibly, in default of 
the payment of that fine, which was to be imposed for their benefit, it 
could commit the respondents to jail. 

Mr. Norris. Do you mean that the court could require them to 
pay the Buck’s Stove & Range Co. money—that is, tnat the court 
could impose a fine, and, when it was collected, have it paid over to 
the complainant ? 

Mr. Ralston. Yes, sir; that is the procedure which has been taken 
in a large number of cases. 

Mr. Carlin. Is any procedure pending now under that decision of 
the Supreme Court ? 

Mr. Ralston. Yes^ sir. 

Mr. Norris. Would not that in effect be a method of bringing pro-# 
ceedings for the collection of damages which, under a more appropriate 
procedure, should be collected directly by a suit for damages ? 

Mr. Ralston. If you are asking for my individual opinion, I will 
say I think so. I think my views would be very radical upon this 
whole question of contempt, perhaps too radical, because I think there 
is very little necessity for any law upon this subject at all, except for 
those contempts committed directly. That, however, is a personal 
view of my own. 

Mr. Thomas. The second section ( a ) reads as follows: 

Contempt committed during the sitting of the court or of a judge at chambers, in 
the presence of the court or in the presence of the judge at chambers, or so near thereto 
as to obstruct the administration of justice. 

Do you not believe that the United States judges would construe 
that law to mean an obstruction to the administration of justice even 
in cases where the parties charged were a thousand miles distant from 
the court ? 

Mr. Ralston. I think not. 

Mr. Thomas. I think they would, and I think they have done it in 
the district court in my own State. 

Mr. Ralston. If you will pardon me I will suggest that they 
certainly have sought to punish for contempt committed miles away. 
Do you understand these to be direct contempts or indirect con¬ 
tempts committed outside the presence of the court? 

Mr. Thomas. It might be an indirect contempt, but however far 
distant, they would construe it as an obstruction to justice. 

Mr. Ralston. Yes. 

Mr. Moon. I do not believe that has been the case under the terms 
of the existing law. The whole object of this bill is to treat these 
direct contempts as indirect contempts. The whole theory is prac¬ 
tically to make these direct contempts indirect contempts. 

Mr. Thomas. Why not pass a bill allowing United States judges to 
fine a man up to a certain extent for direct contempt without the 
intervention of a jury, and if they impose a greater fine, say as much 
as $50, then he shall have a jury trial, and then give the persons 


CONTEMPTS OF COURT. 21 

charged a jury trial in all indirect contempts? Is not an indirect 
contempt a breach of the peace ? 

Mr. Ralston. Yes. 

Mr. Thomas. It is simply a breach of the peace? 

Mr. Ralston. Yes. 

Mr. Thomas. Then why is not the person charged entitled to a 
trial b}" jury? 

Mr. Ralston. That brings me to what I should have said a moment 
ago. As I said, my own view upon the subject was crystallized; 
that there is absolutely, except for contempt committed in the imme¬ 
diate presence of the court, no statute for any special procedure 
whatever in contempt cases. The reason is this, that disobedience 
to an order of court is in its essence a crime, and is made criminal 
with propriety by the Revised Statutes; and, being criminal, I per¬ 
sonally see no more reason why a contempt of court should be the 
subject of special procedure and special methods of trial.than any 
other criminal offense. After all, it is nothing but a criminal offense, 
and the fact that it is committed before the court is not really of the 
essence of the offense. 

Mr. Thomas. I do not wish to trouble you, but have you read that 
bill of mine, No. 5605, on that subject? 

Mr. Ralston. I am sorry to say that I have not had that pleasure. 

Mr. Thomas. I wish you would read it, and point out what objec¬ 
tions you have to it. 

Mr. Ralston. I will be glad to have a copy of it and to go over it. 

Mr. Thomas. I wish you would go over it, and, if you have any 
objections to it, please point them out. 

Mr. Ralston. I shall be glad to do it. 

Now, there are certain other things, and one of them has been 
touched upon by the gentleman who has last spoken. There are 
certain things in section 3 to which I want to direct the committee’s 
attention. There is no limitation as to the punishment which may be 
inflicted in contempt cases, and I submit that that is a dangerous 
thing. I think that matters of that kind ought not to be left to the 
unrestrained action of the court, and that this committee, in whatever 
bill it may agree upon, ought to fix directly and absolutely the limita¬ 
tions upon the powers of the court in the matter of inflicting punish¬ 
ment. There is no such limitation in the statutes to-day. Doubt¬ 
less the compilation of which the chairman has spoken will indicate 
to this committee more clearly than anything I might say what the 
rules are in the different States, but I will take a moment to call the 
attention of the committee to a few of them as gathered together in 
a brief that it was my fortune to prepare sometime ago. In Florida 
fines for contempt may not exceed $10 or imprisonment for 30 days; 
in Louisiana, fines are limited to $50 and imprisonment to 10 days; in 
New York fines may not exceed $250 and imprisonment not in excess 
of six months; in North Carolina, the punishment is a fine not ex¬ 
ceeding $250 or imprisonment not exceeding 30 days; in Ohio, punish¬ 
ment may not be more than a fine not exceeding $500 and imprison¬ 
ment not exceeding 10 days. 

Mr. Carlin. That does not apply to witnesses refusing to answer 
questions, does it ? 

Mr. Ralston. 1 do not recollect any limitation in that respect. 


22 


CONTEMPTS OF COURT. 


In California, punishment may not exceed $500 and imprisonment 
not exceeding 5 days. 

These limitations exist in the States named and in a great number 
of other States. I think the severest fine which has ever been 
imposed directly by the Supreme Court itself was in the Shipp case, 
ana, as I remember, that was 90 days in jail, and yet punishments 
for contempt have been administered by the courts as high as a year, 
and possibly in one or two cases in excess of that time. Yet, the 
consensus of legislative opinion is that fines ought not to be on an 
average of perhaps more than 30 or 60 days’ imprisonment. 

Mr. McCoy. What about the case of a man who is directed by the 
court to do a thing which he may be able to do but which he still 
refuses to do ? 

Mr. Ralston. That raises a different state of affairs. There is 
quite a distinction there. That is not exactly treated by the courts 
as punishment, because he may go free if he will, and there have been 
cases of that sort, perhaps, in some of these States I have enumerated. 

Mr. Graham. In such cases the court would make continuing 
orders. 

Mr. Ralston. I think the suggestion is this, where, for instance, 
a man is ordered to execute a deed and declines to do it and will 
go to jail first. As the courts have sometimes expressed them¬ 
selves, he holds the key to the jail in his own hand all the time, so 
that is not a fine in the strictest sense. 

Mr. Norris. Your illustration could be made with a witness 
declining to testify. In case the court made an order directing the 
witness to answer certain questions, you could not relieve him there 
by having somebody else to do it. 

Mr. Graham. If he refuses to answer the questions, the court can 
commit him to jail for a time, and at the end of that time, if lie 
still refuses to answer, the court can recommit him, and by that 
means can keep him in jail indefinitely, but at no time would the 
court be inflicting more than a limited punishment. 

Mr. Norris. If a limitation is put in section 3, as suggested by 
you, would it reach that kind of contempt? 

Mr. Ralston. It would be difficult for me to answer that offhand. 
I am going over this very hastily, and await the pleasure of the 
committee. 

Mr. Davis. I think that Mr. Ralston’s statement ought to be al¬ 
lowed to proceed without interruption. 

Mr. Nye. Is it the purpose of the committee to continue this ses¬ 
sion after 12 o’clock? 

The Chairman. I wanted to accommodate Mr. Davenport, who is 
here to-day. In response to an inquiry that I received from another 
gentleman the other day, saying that he and Mr. Davenport wished 
to know whether the hearing would be public, I stated that the com¬ 
mittee would be glad to have himself and Mr. Davenport present, 
and Mr. Davenport is here. He informs me that he has an important 
court engagement in New York to-morrow that will take him out of 
the city, and he w^ould like very much to be heard to-day. Of 
course, we can hear Mr. Wilson at any time. 

Mr. Wilson. I simply w^ant to call attention to the fact that it is 
necessary for me to be on the floor of the House when it convenes, 


CONTEMPTS OF COURT. 


23 


and I ask that I be given an opportunity to be heard at some other 
time. 

Mr. Henry. This is a very important subject, and we should finish 
it up very promptly. I desire to make this sort of motion, that the 
bills now pending and the hearings now being had be made the special 
order for to-day and for all other days until we have finished the 
hearings and taken action on the bill. 

The Chairman. You have heard the motion, that the bill now 
under consideration, H. R. 13578, and all other bills pertaining to the 
same subject, be made the continuing order for hearings to-day and 
to-morrow and until the hearings may be concluded and action had 
by the committee on the bill. 

Mr. Carlin. You do not intend by that to limit the discussion of 
the bill ? 

Mr. Henry. No, sir; I simply want to finish up the job after we 
take it up. 

(The motion of Mr. Henry was unanimously adopted by the com¬ 
mittee.) 

Mr. Moon. Was it your idea that immediately after the public 
hearings we should go into executive session for the purpose of con¬ 
sidering the bills ? 

Mr. Henry. Yes; but I do not want to shut off the hearings at all. 

The Chairman. What is the pleasure of the committee ? It is now 
12 o’clock. What time shall we return here, or shall we remain in 
session longer ? I understand that it is the pleasure of the committee 
that we proceed with the hearing at this time, and Mr. Ralston will 
continue his statement. 

Mr. Nye. Do I understand that there is no objection ? 

The Chairman. The proposition is that the committee now con¬ 
tinue this hearing and that Mr. Ralston proceed at this time with his 
statement. Is there any objection? 

Mr. Nye. I think we ought to take a recess. 

(Whereupon, at 12 o’clock noon, on motion of Mr. Nye, the com¬ 
mittee took a recess until 2 o’clock p. m.) 

AFTERNOON SESSION. 

The committee met, pursuant to the taking of recess, at 2 o’clock 
p. m. 

ARGUMENT OF DANIEL DAVENPORT, ESQ., OF BRIDGEPORT, 

CONN. 

Mr. Davenport. Mr. Ralston says he will kindly suspend his 
remarks and let me take the floor, so that I can get the train, if that 
is agreeable to the committee. 

The Chairman. That is perfectly agreeable, unless I hear some 
objection. No objection is heard. The committee is in order, and 
Mr. Davenport will now proceed. 

Mr. Davenport. My name is Daniel Davenport. I reside in 
Bridgeport, Conn. If the committee please, this is a matter that is 
of such great importance, and that affects the'profession and the 
courts, of course, of this great country, so generally, that I would 
ask, after I submit what oral suggestions I have to make, the privi- 


24 


CONTEMPTS OF COURT. 


lege of filing with the committee, before the hearings are closed, a 
memorandum elaborating my arguments in regard to the pending 
measures. 

The Chairman. Mr. Davenport, permit me to ask you right there 
how much time you would want to do that ? 

Mr. Davenport. I can do it in three or four days, I should suppose. 

The Chairman. I might say that some of the members of the com¬ 
mittee have indicated a desire to bring this hearing to a conclusion 
this week, if possible. 

Mr. Davenport. It seems to me, Mr. Chairman, that when the 
committee comes to consider the insuperable objections which lie in 
the way of this bill they will be desirous of all the light that anybody 
can throw on the general subject, providing they desire to have any 
legislation whatever. 

The Chairman. I have no disposition to speak for the committee, 
because it has not taken any action on that; but I merely suggest 
that in view of what has been suggested to me by some members of 
the committee I hope you will prepare the brief, or argument, or 
document, or whatever you may call it, as soon as you can. 

Mr. Davenport. Certainly. 

The Chairman. Understand me, I do not undertake to say when 
the committee will close the hearings. 

Mr. Davenport. I would request that this bill, H. R. 13578, may 
may be printed at the commencement of the report of my remarks. 

The Chairman. That will be printed. It is already considered as 
printed in the hearings in the statement I have made. You just 
proceed as though it were in there. 

Mr. Davenport. My request was that it might be embodied as a 
part of my remarks in order that the pertinency and application of 
the objections I may make may be apparent. 

The Chairman. It will be at the beginning of the hearings with 
the statement I made this morning. You will remember I said that 
several of these things would be printed in the preliminary statement, 
and you may just consider it there, there being a few intervening 
pages in the hearing between the printed bill and your remarks. My 
reason for suggesting that is that there is no reason for printing it 
twice in the same document. So you just assume'that it is before 
you in your hearing, as it will be in the printed hearing. 

Mr. Davenport. I do not know who is the author of this bill. 

The Chairman. I can answer that for you if you desire the infor¬ 
mation. 

Mr. Davenport. I trust that, whoever may be the author of this 
bill he, will not take exception to any criticisms that I feel obliged to 
make upon its provisions. 

The Chairman. That is exactly what this hearing is for—to have 
criticism. 

Mr. Davenport. With that explanation, I direct the attention of 
the committee to the provisions of this bill as an opponent of it. 

The first section of the bill provides as follows: 

That contempts of courts are divided into two classes, direct contempts and indirect 
contempts, as hereinafter defined, and shall be proceeded against as hereinafter pre¬ 
scribed and not otherwise. 

Sec. 2. Direct contempts are— 


CONTEMPTS OF COURT. 


25 


. ( a ) Contempts committed during the sitting of the court or of a judge at chambers, 
m the presence of the court or in the presence of the judge at chambers, or so near 
thereto as to obstruct the administration of justice. 

(6) The failure or refusal to obey the mandate of a lawful subpoena to attend any 
court or before a judge or a commissioner and testify as a witness, or to produce books, 
documents, writings, papers, or records. 

(c) The failure or refusal to obey the mandate of a lawful summons to attend and 
serve as a juror in any court. 

(d) The misbehavior of any of the officers of the court in their official transactions 
or the disobedience or resistance by any such officer to any lawful writ, process, order, 
rule, decree, or command of said court or judge at chambers. 

All other contempts are indirect contempts. 

Then section 3 provides what ? That every direct contempt may 
be punished summarily without written accusation against the person 
arraigned for such direct contempt. The first criticism I make upon 
this bill is that that provision is manifestly unconstitutional, because 
it blends together those things which are in their nature essentially 
and fundamentally distinct, for the purpose of proceeding to their 
investigation and punishment. 

Mr. Carlin. What provision of the Constitution does that violate ? 

Mr. Davenport. No person shall be deprived of liberty or property 
without due process of law. 

The Chairman. Have not the courts always punished direct con¬ 
tempts without any written specifications or charges? 

Mr. Davenport. Not always. But, if the committee would permit 
me to develop what I have to say, perhaps it would ^obviate the 
necessity of asking me questions or my diverting from the argument 
to answer them. 

The Chairman. Very well. 

Mr. Davenport. There are two classes of contempts in the nature 
of things, and so recognized by all the courts time out of mind. 
One is a contempt committed in the face of the court, and the other 
is a contempt committed outside of the scope of the senses of the 
judge. It is onl} T in the case of offenses committed in the face of the 
court that proceedings can be taken after the manner that is out¬ 
lined here in the third section, the reason being that the judge sees 
the offense committed, and all that a witness could do is performed 
by the judge himself. He sees it, and upon that knowledge he is 
permitted to proceed summarily and punish the contemnor. But 
this country as yet is not Turkey or Russia, and any attempt to 
pursue that course as to anything committed outside the presence 
of that judge would be an invasion of the fundamental rights of the 
citizen which no court could pursue without a violation of the fifth 
amendment to the Constitution. We all know that, according to 
the old adage, calling a tail a leg does not make it a leg. There is 
that essential difference between contempts, and if you should attempt 
to authorize the court to proceed in regard to these constructive 
contempts, as they are called—that is to say, contempts not com¬ 
mitted in the face of the court—as it may proceed in contempts in 
the personal presence, this act would be, in that respect, void. Upon 
that proposition I do not suppose it is necessary for me now to cite 
authorities, but in the memorandum which I request the privilege of 
presenting to the committee you will find that proposition fully 
supported. 

I was calling attention to the fact that, according to my contention, 
the division in this bill of contempts into direct contempts and 


26 


CONTEMPTS OF COURT. 


indirect contempts, and the including in the class of direct contempts 
both offenses committed in the face of the court, where summary 
action can be taken, offenses committed outside of the observation of 
the court, and the permitting in the latter cases summary action 
as in the former, would be an invasion of the rights of the contemnor, 
and a law in that respect would be void; and I promise to present to 
the committee authorities in support of that proposition. 

Mr. Moon. I do not know that I exactly understand. Can ^ou 
give an illustration? Do you mean to say they include something 
in the first section that ought not to be included, that would violate 
the constitutional right of the contemnor ? 

Mr. Davenport. This bill attempts to divide contempts into what 
it calls direct and indirect, and under the head of “direct contempts” 
it includes both offenses committed in the face of the court, which the 
court time out of mind has been authorized to proceed with summarily, 
and others committed outside of the view of the judge, where such 
summary proceedings never have been and never can be constitu¬ 
tionally resorted to. You can find an excellent illustration of that 
and I think the authorities fully cited in Ex parte Terry, in 128 
United States Reports, which you will remember was the case where 
an order having been made in the presence of Judge Field upon 
Judge Terry he resisted it and drew a pistol upon the officer, and 
immediately went into the adjoining room. Thereupon Judge Field 
proceeded at once without having Terry brought before him, to find him 
guilty of contempt, and sentenced him in his absence and without any 
hearing to six months in jail. From that sentence, or to be relieved 
from its effect, Terry brought a habeas corpus, and it came up before 
the Supreme Court, and in the opinion the court pointed out the 
distinction between contempts that are committed in the face of the 
court and all other contempts, and overruled the objection of Judge 
Terry’s counsel that the action of the court was void, holding that 
summary proceedings can be taken for offenses committed in the face 
of the court, while they can not be taken in any others without a 
violation of the constitutional rights of the party." So much for that 
point. 

Another thing that appears right on the face of this bill is one 
alluded to this morning by Mr. Ralston. He directed vour attention 
to the fundamental distinction that exists between what are called 
“civil” contempts and “criminal” contempts, and he well illus¬ 
trated the distinction. Of course, that line of cleavage runs through 
the whole field of jurisprudence. 

Now, it is not in the power of the legislative department to require 
the equity courts of the United States to have the issues of fact 
in any proceeding in equity tried by a jury. It is not within the 
legislative power. They can authorize them to try the issues by a 
jury. They are authorized now to try them by a jury, as was stated 
by Mr. Justice Lamar in the opinion in the Gompers case (22*1 
U. S.). But Congress can not compel any issue of fact in a 
civil proceeding in equity to be tried before a jury. Upon that 
proposition I promise to submit to the committee, in my memorandum, 
many authorities. There is no disputing it. 

But just now I want to particularly direct your attention on that 
subject to the case of Brown v. The Kalamazoo Circuit Judge, to be 
found in 75 Michigan, beginning on page 274. I want to read now 


CONTEMPTS OF COURT. 


27 


only an extract or two. That was a case where the Legislature of 
Michigan undertook to require in equity cases the trial of issues of 
fact by a jury, and the court held the law unconstitutional, and said, 
among other things: 

The system of chancery jurisprudence has been developed as carefully and as 
judiciously as any part of the legal system, and the judicial power includes it, and 
always must include it. Any statute which transfers the power which belongs to a 
judge to a jury, or to any other person or body, is as plain a violation of the Constitution 
as one which should give the courts executive or legislative power vested elsewhere. 
The cognizance of equitable questions belongs to the judiciary as a part of the judicial 
power, and under our Constitution must remain vested where it has always been vested 
heretofore. 


They refer to decisions made by the Supreme Court of the United 
States under the Federal Constitution. The committee must bear 
in mind that all proceedings in equity courts in what are called civil 
contempts are, as Mr. Ralston well explained it, remedial, for the 
benefit of the party. They are part of the main case, and Congress 
can no more compel the courts to have the fact of the contempt to 
be determined by a jury than they could in any other proceeding in 
the case. 

Reference was made here to the famous case of the Bucks Stove & 
Range Co. v. Gompers (221 U. S.). As Mr. Ralston well explained, 
the court there held that that proceeding was one to punish for a 
civil contempt, and that, being civil, the only remedy under it 
which the plaintiff was entitled to was a fine imposed upon the 
parties who had violated the injunction; in some respects com¬ 
mensurate with the damage they had done the plaintiff that crimi- 
inal punishment could not be inflicted in sucli a proceeding. To sum 
this all up, so far as the provisions of this bill undertake to require 
the trial of civil contempts in equity to be by jury, Congress would be 
doing a futile thing if it passed a bill for that purpose for reasons 
well explained in the decisions. 

But there are other objections to this bill which are fundamental 
and insuperable, and which arise from the fact that it is not within 
the power of the legislature to take away the power of any court, 
either of law or equity, to protect its own dignity frbm assault and to 
enforce its own orders by explicitly what is called, for the sake of 
distinction, criminal punishment. This necessitates a brief ex¬ 
planation of the relation the Federal Legislature bears to the judiciary 
of the United States. 

You will remember that the Constitution provides that the judicial 
power of the United States shall be vested in a Supreme Court and 
in such inferior courts as Congress may from time to time ordain 
and establish. When the legislature, acting under the provisions 
of that Constitution, creates a court and confers jurisdiction over 
t class of cases, the judicial power of the United States vests in 
t court, not by virtue of the legislation, but bv force of the Con- 


any 

that —... v, 
stitution. 

Now, we had up in my State a famous case which well illustrates 
that proposition, which case, by the way, has been cited more fre¬ 
quently probablv than any other case in the history of jurisprudence, 
until its doctrines have become interwoven as a portion of the judi¬ 
cial fabric of this country. I refer to the case of Brown v. O’Connell, 
reported in 36 Connecticut, page 432. Let me briefly explain how 


28 


CONTEMPTS OF COURT. 


that case directly bears upon the proposition I am now explaining. 
Our State constitution provides that the judicial power of the State 
shall be vested in a supreme court of errors, a superior court, and such 
inferior courts as the legislature may create, the same language 
exactly as the language of the Federal Constitution, with the excep¬ 
tion that we mention a superior court, the language being,“ A supreme 
court of errors, a superior court, and such inferior courts as the legis¬ 
lature may create.’’ In the case of Brown v. O’Connell, reported, as 
1 say, in 36 Connecticut, 432, the court had occasion to determine 
whether the judicial power of the State of Connecticut vested in the 
police court of the city of Hartford, “an inferior court,” by virtue 
of the charter of the city of Hartford passed by the legislature, or 
whether it vested in it by force of the constitution of the State; 
because the language of the constitution of the State was that the 
judicial power shall be vested in such “inferior courts” as the legisla¬ 
ture may ordain and establish, in substance. The case is full of 
instruction; but I read only one sentence as containing the point of it: 

It was therefore competent for them to provide for the organization of the court in 
question and to define the jurisdiction it should possess, and when so constituted the 
judicial power of the State vested in it by force of the Constitution to the extent of 
the jurisdiction so defined. 

I promise to lay before the committee, in the memorandum which 
I will submit, other cases illustrative of the proposition, to show that, 
the distinction that is attempted sometimes to be made (and which 
has apparently influenced the author of this bill) between the Supreme 
(’ourt of the United States—because that is mentioned by name in 
the Constitution—and the other courts, which are called “inferior 
courts,” which the legislature may from time to time ordain and 
establish, is unfounded. This is not any longer an open question so 
far as the courts of the United States are concerned. 

Air. Moon. I was going to ask you what the judicial power is. 
What is vested in the court by the constitution when it is created ? 

Air. Davenport. The judicial power is the power to hear and decide 
and to exercise all those inherent functions which are necessary in 
order for it to perform and exercise its jurisdiction. 

Air. AIoon. And enforce its decrees ? 

Mr. Davenport. Absolutely. Let me say, as I was about to say, 
this is not any longer an open question. The Supreme Court of the 
United States settled that question in the Gompers case. I presume 
you gentlemen have all had more or less experience in contempt mat¬ 
ters. The very first case I ever had, 36 years ago, was one in 
Connecticut, the case of State v. Middlebrook (43 Conn.), which is 
referred to so often in the books. They have been coming up all 
along ever since; and I think Mr. Ralston and 1 will have to consider 
the subject of contempt for some time to come. The power to punish 
for contempt is necessarily inherent in any court when it is created, 
and it does not need any legislative act to confer that power upon the 
court; neither can the legislature take away that power, it can reg¬ 
ulate it, it can limit it, so long as it does not essentially impair the 
court’s judicial power in the exercise of its jurisdiction. I want to 
just call your attention to what the Supreme Court said in this very 
recent case, which follows a long line of decisions. I quote now from 
Gompers v. The Buck Stove & Range Co. (221 U. S., p. 450): 


CONTEMPTS OF COURT. 


29 


. For while it is sparingly to be used, yet, the power of courts to punish for contempts 
is a necessary and integral part of the independence of the judiciary, and is absolutely 
essential to the performance of the duties imposed on them bv law. Without it they 
are mere boards of arbitration whose judgments and decrees would be only advisory. 

If a party can make himself a judge of the validity of orders which have been issued, 
and by his own act of disobedience set them aside, then are the courts impotent, and 
what the Constitution now fittingly calls the “judicial power of the United States” 
would be a mere mockery. 

this power ‘‘ has been uniformly held to be necessary to the protection of the court 
from insults and oppressions which in the ordinary exercise of its duties enable it to 
enforce its judgments and orders necessary to the due administration of law and 
the protection of the rights of suitors.” 

There has been general recognition of the fact that the courts are clothed with this 
power and must be authorized to exercise it without referring the issues of fact or law 
to another tribunal or to a jury in the same tribunal. For if there was no such authority 
in the first instance there would be no power to enforce its orders if they were disre¬ 
garded in such independent investigation. Without authority to act promptly and 
independently the courts could not administer public justice or enforce the rights of 
private litigants. 

That is also the doctrine laid do # wn in the Debs case, in 15S United 
States, and the court in the Gompers case was really only adopting or 
using the language that had been used in that case. On that prop¬ 
osition I promise the committee that I will produce an abundance of 
authority, so far as Federal legislation is concerned. 

Reference has been made here to State legislation. With com¬ 
mendable diligence the chairman has pursued an investigation into 
the legislation of the States, to see what they have done and how they 
have attempted to deal with these matters. Unfortunately I did not 
hear any reference, in the resume which was read or referred to by 
him this morning, to wliat the courts of the States had done to these 
laws in regard to this matter. For instance the State of Virginia 
passed a statute which required the trial of contempt cases—indirect 
contempts, as they are called in this bill—by a jury. Rut the court 
of appeals in Carter’s case in 96 Virginia—decided, by the way, after 
the report was made by Judge Ray, to which the chairman referred— 
expressly held the law to be unconstitutional because it took from the 
courts of the State their inherent powers, which were essential to the 
independence of the judiciary of the State. 

I think some reference was made to the legislation of West Virginia. 
I know a statute was passed there very similar to the one Representa¬ 
tive Thomas has spoken of in Kentucky, and the supreme court of 
West Virginia decided that it was unconstitutional in State v. Frew 
(24 W. Va.). Of course, in a broader way the same question is involved 
in the discussion of the power of Congress to restrict and prevent the 
issuance of injunctions by courts of equity, but upon these points I 
will not now further elaborate. 

What is an indirect contempt in an equity court? It includes a 
violation of a temporary restraining order, a violation of a tempo¬ 
rary injunction, and the violation of a permanent injunction. In 
all such cases under the provisions of this bill the accused would be 
entitled to a trial by jury. Now, take an instance. Suppose 1 
have a contest with my friend here, Mr. Nye, for instance, over cer¬ 
tain trust funds, or over the possession of certain negotiable securi¬ 
ties, or a thousand and one things of that nature that may come up, 
and he comes into a Federal court of equity and asks to have his 
rights secured. He goes through all the processes and delays of the 
courts, and finally gets a permanent order, a final decree that I pay 


30 


CONTEMPTS OF COURT. 


over to him the money, or that I pay it to a receiver, or to another 
trustee; or that I execute a deed, or that I do any of the thousand 
and one things that Mr. Ralston referred to in his remarks, but I 
do not do it. You know how it is now r . The court would call me 
in, and if I could not justify it I would be promptly committed 
to jail until I did comply. Under this bill, what is to happen ? When 
he comes to proceed against me I would call for a jury. Of course, 
you must have observed the many imperfections and absurdities in 
this bill in regard to how such jury is to be summoned, and how the 
trial is to be conducted; because you understand that it is not a crimi¬ 
nal trial in any way, and the law providing for a common-law jury 
has no application at all to a jury in an equity court. Mr. Nye would 
have to go to work and try his case all over again in order to compel 
me to do that which, in the original decree, I had been ordered to do. 

But I want to call the committee’s attention to the very disas¬ 
trous effect such a bill would have on the great trust litigation the 
country is having. After the Government, with infinite pains and 
innumerable delays, at last gets a final decree in such a case and the 
court undertakes to enforce that decree if this bill passes, how 
is it to be done ? These men who are guilty under the decree can be 
brought into court now; if they do not obey, to jail they go. If 
this proposed change is made and the court undertakes to enforce its 
decree, the first thing it must do is to have a jury trial, with all the 
possibilities of adverse verdicts, disagreements, bribing of jurors, 
delays, and all such things that may occur in the course of it. I 
would like to develop these things orally further, but I am pressed 
for time. But I do say that I will endeavor to file a memorandum 
for the use of the committee. 

Mr. Moon. Let me ask you a question there. Take the Standard 
Oil decree, and suppose the parties in interest refuse to obey; they 
would be entitled to a jury trial. 

Mr. Davenport. Certainly. 

Mr. Moon. I would like your opinion as to whether the merits of 
the original question could not be entered into ? 

Mr. Davenport. Probably. 

Mr. Moon. Is it not true that the rule of law is that a contempt 
order must have been one that was judicially and properly made? 

Mr. Davenport. Certainly; so far as it is jurisdictional. 

Mr. Moon. And one which the court had a right to make. Would 
it not open up the whole question? 

Mr. Davenport. Whether the decree was within the jurisdiction 
of the court. We fought that all out, Mr. Ralston and I, in the 
Gompers matter. To see how impotent the couij would be in 
matters of this kind, take a case 1 was speaking of to Judge Moon, 
that has come up now in the Circuit Court of the Southern District 
of New York, where w r e are endeavoring to have certain gentlemen 
punished for the violation of an injunction. On the 31st of Decem¬ 
ber the Circuit Court of the United States for the Southern District 
of New York will cease to exist, and who is going to punish the vio¬ 
lators of the injunction thereafter for previous offenses against the 
dignity of the court? The court then dies. It has no enemies to 
punish nor friends to reward thereafter. It ceases to be. It will 
be as dead as Julius Caesar thereafter, and no other court can be 
authorized to proceed to try the questions as to the offense against 


CONTEMPTS OF COURT. 


31 


the dignity of the Circuit Court of the United States for the South¬ 
ern District of New York. Why? The Supreme Court says so 
in Gompers’s case. It is utterly impossible to transfer from one 
court to another the determination of the question whether there 
has been any affront to the dignity of that court. And, in the 
same wav, it says you can not transfer the trial of the question to a 
jury in the same tribunal. 

Thanking the committee for the opportunity, and Mr. Ralston for 
permitting the interruption, and if the committee does not care to 
ask any questions, I would ask to be excused. 

Mr. Nye. Under this law, suppose they went on in the trust cases, 
for instance, to enforce the decree and the jury was called. Has the 
judge any power to direct that jury, or even instruct, and make his 
instructions binding ? 

Mr. Davenport. No. At present, you know, when a jury is 
resorted to in equity, as the court has said over and over again, the 
court can set aside everything the jury does in its verdict. It is 
advisory what a jury does in an equity case in a United States court. 

Mr. Carlin. If I catch the force of your argument, it is that the 
power to punish for contempt is an inherent power in the court, and 
there can not be legislation in regard thereto, or it can not be regu¬ 
lated or controlled. 

Mr. Davenport. I say it may be regulated, but not so as to 
substantially impair its effectiveness. 

Mr. Moon. That is, it can not be regulated to the extent of taking 
away from the court the power to enforce its decrees by summary 
proceedings. 

Mr. Davenport. Certainly not. 

Mr. Moon. Justice Field, in interpreting the act of 1831, which 
did regulate it, affirmed that power of the court, did he not ? 

Mr. Davenport. Yes. 

Mr. Moon. I have his language here: 

The power to punish for contempts is inherent in all courts; its existence is essential 
to the promotion of order in judicial proceedings and to the enforcements of judgments, 
orders, and writs of the courts. 

In every other respect it is to regulate. 

Mr. Carlin. It is very easy to dismiss an important matter with a 
statement of that sort. But let us see the test of that statement. 
What would you consider a regulation of the power of a court to 
punish for contempt that would not impair the free will of the court 
to do as it pleased ? 

Mr. Davenport. I will give an illustration. Take the bill cited, 
I think by Mr. Thomas, which requires a trial by jury in cases where 
the punishment exceeds $10 fine. How much effect would that have— 
a fine of $10—on a trust magnate? It would be a .mockery of the 
court. Such a law as that mentioned by him is on its face, and the 
Supreme Court of West Virginia so says, if I recollect it right, abso¬ 
lutely making a mockery of the court’s order. I should say that prob¬ 
ably a limit could be fixed that in ordinary cases would be held not 
to be crippling to the court. Another suggestion was made by Mr. 
Ralston this morning. 

Mr. Carlin. Permit me just a minute, while you are on that one 
subject of regulation. Suppose, on the other hand, that for a mere 
petty offense committed in the presence of the court itself, in the face 


32 


CONTEMPTS OF COURT. 


of the court, as you have suggested, the court should imprison a man 
for 10 years ? 

Mr. Davenport. That very situation has been met. 

. Mr. Carlin. If there were no power anywhere to regulate that 
discretion of the court, the court could just as well make it 10 years 
as 10 days or , 10 minutes. 

Mr. Davenport. The Supreme Court of the United States has held 
that cruel and unusual punishments of that character are prohibited 
by the Constitution. There is a limit to which the court can go. 

Mr. Nye. The abuse of the discretion. 

Mr Davenport. Certainly Our friends contended, in the Gom- 
pers case, that the sentence there was unparalleled in length and so 
void as unusual and cruel. But we had only to turn to the case In re 
Savin (131 U. S., 267), where a sentence for a year was inflicted in a 
contempt case, which the Supreme Court of the United States sus¬ 
tained. That was an attempt to bribe a witness near the court. We 
found also several sentences by Judge Brewer of ten, eight, and six 
months in contempt cases for violation of injunctions. 

Mr. McCoy. Judge Davenport, do you not conceive that .the object 
of this bill is to do away with the trial merely of an issue of fact on 
affidavits, and to submit the question of fact to the jury, and in no 
way impede the court in imposing such punishment as it shall deem 
proper, if the fact of the violation is found to exist ? 

Mr. Davenport. Suppose the jury finds that the violation did not, 
occur or that it should disagree; what becomes then of the power of 
the court ? The trial of cases by affidavits—those are not permitted. 

Mr. McCoy. Taking a concrete case, suppose there is a case of 
picketing, as we know that word in labor disputes. A man is accused 
on affidavits of having violated an order of the court against picketing. 
Do you conceive that the dignity of the court, or its inherent powers, 
would be in any way impinged if that man denied he had been picket¬ 
ing, that he had been at that specific place at the time when the offense 
was alleged to have occurred^ and he was given an opportunity of 
having that mere issue of fact tried by the jury ? It would not involve 
the making of the decree; I mean, the question of fact as to whether 
the decree was made would not be involved or whether the court had 
jurisdiction to make the decree; but that sole fact would be the one 
that would be in issue,,would it not ? 

Mr. Davenport. Yes; and the court is dependent, then, upon the 
finding of the jury. 

Mr. McCoy. In the other case it is dependent on affidavits made bv 
some witnesses. 

Mr. Davenport. Not affidavits. You do not try cases by affi¬ 
davit. That is one of the points settled in the Gompers case, the 
right of a contemnor to have his case tried by witnesses who give their 
testimony in court, or the equivalent of it. Affidavits will not go. 

But before I leave I want to refer to one matter which Mr. Ralston 
spoke of this morning. He says many offenses are made criminal 
by statute, and that that dispenses, if I understood him, with the 
necessity exercised by court of the power to punish for contempt. 
Suppose your honors, in the exercise of your legitimate power, should 
make it a criminal offense for a person to spit in the face of a judge, 
a misdemeanor, or even a felony. Would that deprive the court of 
the power then and there to punish him for the contempt of court ? 


CONTEMPTS OF COURT. 


33 


This committee should not fail to remember that it is only by form 
of speech that we speak of criminal and civil contempt. There are 
no crimes against the United States except those that are created 
and defined b y statute. That was held long ago in the case of United 
States v. Hudson, in 7 C ranch. There can not be found an offense 
against the sovereignty of the United States unless it is defined in 
some statute, created by some statute. In that very case they dis¬ 
tinguish between the inherent power of the court to punish for con¬ 
tempts and the exercise of criminal jurisdiction by that court. 

Mr. Carlin. Mr. Davenport, in line with the question asked you 
by Judge Moon just now as to what the powers were conferred on the 
courts by statutes, I call your attention to section 725 of the Revised 
Statutes of the United States. It says: 

The said courts shall have, power to administer all necessary oaths, and to punish, 
by fine or imprisonment, at the discretion of the courts, contempts of their authority: 
Provided , That such power to punish contempts shall not be construed to extend to 
any cases except the misbehavior of any person in their presence, or so near thereto 
as to obstruct the administration of justice. 

Mr. Davenport. Read those further provisions. 

Mr. Carlin (reading) : 

The misbehavior of any of the officers of said courts in their official transaction, 
and the disobedience or resistance of any such officer, or by any party, juror, witness, 
or other person, to any lawful writ, process, order, rule, decree, or command of the 
said courts. 

Is not that an empowering statute ? 

Mr. Davenport. Xo. 

Mr. Carlin. Does not that limit the authority of the courts ? 

Mr. Davenport. It is a limit of power, and, as has been repeatedly 
pointed out by the judges, not only of the United States but of the 
State courts, every single essential power of the court is carefully 
preserved in that statute. 

Mr. Carlin. Under your contention, would not the existing statute 
be unconstitutional ? 

Mr. Davenport. No, it would not. It might be unconstitutional 
in some extreme instances, but, as has often been pointed out, there 
is not a single act which it is essential for the court to have power to 
punish in order to secure its dignity and administer justice that is 
not covered by it. You know the history of that proviso. The 
original statute did not have it in, and you will remember that about 
1820 arose the impeachment case of United States District Judge Peck 
of Missouri. Judge Peck had published his decision of a case in the 
newspapers, and the lawyer on the unsuccessful side thereupon very 
severely criticized his decision in the same paper. Thereupon Judge 
Peck pulled him into court and proceeded to punish him for con¬ 
tempt. He sent him to jail, I believe, for a day or two and dis¬ 
barred him from practicing as an attorney for a certain period. The 
gentleman followed the judge up for several years and finally secured 
impeachment proceedings by this House, and the judge was tried 
before the Senate for his acts. James Buchanan, the predecessor of 
our distinguished chairman, was then chairman of this committee, 
and was also the leading manager of the House in the impeachment 
proceedings. Conviction was not secured. Thereupon Mr. Buch¬ 
anan reported from this committee the law as it stands to-day. 

20502—11-3 


34 


CONTEMPTS OF COURT. 


The Chairman. Approved March 2, 1831, and not in the year 1820. 

Mr. Davenport. The impeachment failed along in February, I 
think. 

Mr. Moon. That bill as reported and passed contained more than 
that. It contained a criminal provision, which, by the act of 1874, 
was carried into the criminal code. The act of 1831 was broader 
than that. 

Mr. Davenport. What was the effect of that decision ? It cut off 
such performances as Judge Peck was guilty of, all of which had been 
brought out in the famous arguments on one side or the other in the 
impeachment case; it being contended on one side that there was no 
limit whatever to the power of a judge to punish for such a contempt. 
On the other hand, it was claimed that there was a limitation, that is, 
to punish for publication in newspapers, and that he had exceeded his 
power, which was an impeachable offense. Mr. Webster and some 
other distinguished Senators in the Senate voted for his acquittal. 
He was not convicted. But suppose this case: Suppose a case is 
pending in a United States court, and I am a party to it, and, for the 
purpose of influencing the course of the trial when it comes on, I cause 
to be printed in the newspapers something that brings into disrepute 
my antagonist. I do it for the purpose, by circulation of that in the 
community, of prejudicing my opponent's case. A question was 
asked here this morning if an offense committed a thousand miles 
away might not be held to be so near as to obstruct the administra¬ 
tion of justice. That very case arose over in Philadelphia—Judge 
Moon perhaps will recall it—where Justice Baldwin held that he was 
powerless, in view of this decision, to protect the litigants in his court; 
and that decision is reported. But that has long since been set aside. 
Those words “or so near as to obstruct the administration of justice," 
as was pointed out, are very flexible. It depends on the circum¬ 
stances. 

How much time would it be convenient for the committee to give 
me to prepare this memorandum ? 

The Chairman. Do you think you could do it in the next three or 
four days? 

Mr. Davenport. I think I can. I thank the committee. 

ARGUMENT OF JACKSON F. RALSTON—Continued. 

Mr. Ralston. There are one or two considerations which have 
suggested themselves to me by virtue of the argument of Mr. Daven¬ 
port. Mr. Davenport suggested, in response to a question from Mr. 
Carlin, that an extraordinary sentence in a contempt case, one for 
10 years, for instance, would be such a cruel and unusual punishment 
that it would be regarded as unconstitutional. I was compelled to 
give some consideration to that question in connection with the 
Gompers case, and while, in my brief, particularly in the lower court, 
I collated a number of authorities, some of which were referred to 
this morning, as to the length of punishment permitted in contempt 
cases, I was not able to find any case which would justify the sug¬ 
gestion of Mr. Davenport, although I should have been very glad at 
the time to have had his assistance. I thought, at the time the sen¬ 
tence was imposed, it was perhaps so long as to constitute cruel and 
unusual punishment, and that we might avail ourselves of that pro- 


CONTEMPTS OF COURT. 


35 


vision of the Constitution. But the language of the court is different. 
The cruelty and unusual character of the punishment does not relate 
to the length of imprisonment given; it has no relation whatever to 
that, and we were compelled in that case—I found myself as a lawyer 
compelled—to rely upon the matter as an abuse, as we contended, at 
least, of judicial discretion, and it was from that standpoint only 
that we argued it before the court. I think, therefore, Mr. Davenport’s 
suggestion does not meet the question raised by Mr. Carlin. 

The suggestion was also made that affidavits were not used in these 
contempt proceedings. It is fair to say that affidavits have been 
repeatedly used, and I think my recollection is very much at fault— 
and I will be glad to have Mr. Davenport correct me if I am wrong 
about it—if affidavits were not used to decide the Phelan case, which 
is one of the most celebrated, as we know. Certainly they have been 
used in very many contempt cases, and it is utterly improper, as I 
think we must all concede, that the great issue of liberty, which 
sometimes involves in itself even life, should be left to the deter¬ 
mination of affidavits and to the respective skill of lawyers on one 
side or the other in preparing affidavits or the facility with which 
witnesses, who are not subjected to cross-examination, will sign them. 

Mr. Davenport. Will you permit a suggestion ? 

Mr. Ralston. Yes. 

Mr. Davenport. I understand that the Gompers case emphatically 
decides that such a thing as that can not be done. It is true that 
where a party has not insisted on his rights affidavits have been used. 
But in criminal contempts, as we call them, the constitutional right 
of a party to a cross-examination of the witnesses against him can 
not be denied. 

As to the other matter, as to the length of punishment, we have 
these cases. It is true that unless there is abuse of discretion the 
court could not set them aside. But if there is an abuse of discretion, 
they can. And the instance that was cited by Mr. Carlin is a perfect 
one. On that subject of cruel punishment you have but to turn to a 
very recent decision by the Supreme Court of the United States, where, 
for an apparently trifling offense, they imposed a very long term of 
punishment, in a case from the Philippines. Mr. Ralston is undoubt¬ 
edly familiar with that. (Weems v. United States, 217 U. S., 349.) 

Mr. Carlin. That is under statute, though, not a contempt. 

Mr. Davenport. Not contempt; but whether it was cruel and 
unusual punishment to punish a man too severely for an apparently 
trivial offense. 

The Chairman. Mr. Davenport, before you go I want to ask you 
one thing, inasmuch as you have made reference to Mr. Thomas’s bill, 
H. R. 5605. I would like to know whether in that reference to it 
you intend the committee to understand you approve the remedies, 
I may say, or the plan suggested by that bill ? 

Mr. Davenport. No; I do not. I have not examined it. 

The Chairman. Then I would ask you to consider that bill in 
making this brief. 

Mr. Davenport. Will you furnish me with all these contempt bills ? 

The Chairman. Each one. Judge Bartlett introduced a bill that 
is almost a copy of what is known as the Hill bill, to which I re¬ 
ferred this morning. Mr. Henry, of Texas, introduced a bill on the 
same line. Mr. Stanley introduced two bills on the same line. Mr. 


36 


CONTEMPTS OF COURT. 


Edwards, of Georgia, introduced a very short bill on the subject of 
contempt. Mr Kendall, of Iowa, introduced a bill on the same sub¬ 
ject. I will have the clerk furnish you with copies of all the bills, 
and you will understand now that while the discussion has been 
mainly on this bill, H. R. 13578, the committee has all of these bills 
on this subject before it, and will consider them all at the same time. 
I say that m order that you may have the benefit of that suggestion 
when you come to make this written argument or brief. 

Mr. Davenport. Let me call attention right there to the distinc¬ 
tion between the Hill bill, the Ray bill, and this bill. Senator Hill, 
in his bill, avoided the difficulty which I pointed out when I first 
began. He made direct contempts only those which occurred in the 
presence of the court. Mr. Ray, in his substitute, which never came 
to anything, included what are clearly constructive contempts in the 
class of direct contempts, or contempts in the face of the court. He 
put them all on the same basis. Mr. Hill’s bill obviates the first 
objection that I made; but in avoiding Scylla he runs it to Charybdis. 
I thank the committee for that suggestion. 

You will remember that Judge De Armond and his fellow Demo¬ 
crats on the committee most vigorously protested against Mr. Ray’s 
bill. 

The Chairman. I remember very well, and they put it on the 
ground, if you will read Mr. De Armond’s minority report, that Judge 
Ray’s bill provided too much machinery, interrogatories to be pro^ 
pounded, etc., and went too much into detail. 

Mr. Davenport. You can quote that, and you can also quote other 
things in the report. 

(Mr. Ralston resumed his argument.) 

Mr. Ralston. Mr. Chairman, Mr. McCoy was about to ask me a 
question. 

Mr. McCoy. I was just going to ask whether it is not a question, 
in regard to using affidavits in these matters, with the judge, if he 
chooses to supplement the affidavit by calling the parties before him 
and taking testimony; but that he is under no compulsion to do so? 

Mr. Ralston. The practice, I may say, is, I think, undergoing a 
change as nearly as you can figure out from the confusion that at¬ 
taches to the matter of procedure and practice in this relation. The 
old practice was, for instance, that if the contempt was denied 
under oath by the respondent, the respondent went free, subject 
only perhaps to the penalties of perjury. Then there has been a 
practice sometimes of examining him on interrogatories, and the 
Supreme Court has recognized that he might submit to interroga¬ 
tories if he saw fit, with an indication that he had a right to be heard 
in person in some way. 

Mr. Moon. Mr. Ralston, I have before me the Phelan case, and I 
find in that case, which was heard before Judge Taft, it is perfectly 
apparent it was tried on affidavits, because the Judge says: 

On Thursday, July 5, the motion of the receiver for Phelan commitment came on 
to be heard, and a week has since been taken up in the giving of testimony and argu¬ 
ment. & 

The whole case was tried absolutely on testimony given in open 
court. 


CONTEMPTS OF COURT. 


37 


Mr. Sterling. Suppose it was the universal practice to try on 
affidavits; that could be easily remedied by statute without taking 
away the power of the court. 

Mr. Ralston. I think so, absolutely. 

Mr. Sterling. It would not be necessary to have a trial by jury 
in order to avoid affidavits. 

Mr. Moon. I understand the Supreme Court has said it can be 
tried that way. 

Mr. Sterling. 1 am assuming it can be. 

Mr. Ralston. That may be an inference from the Gompers case; 
but of course that was not a question involved directly in the Gompers 
case, as it went to the Supreme Court. 

Mr. Carlin. I would like to have you direct some portion of your 
remarks to the constitutionality of the bill. 

Mr. Ralston. I have not felt myself that there could be any 
question of the constitutionality of this bill as drawn. As drawn 
it relates to a question of penalty. But perhaps my attitude toward 
it may be influenced by a general attitude toward the whole subject, 
and this may not be very legal. I do not present it as such. It 
does seem to me that intrinsically there is no difference between the 
violation of the orders of the courts, the violation of a law of Congress, 
or a violation of an authorized direction of the President. The 
President may not summarily try people who violate orders which 
he is authorized to give and to which a penalty as a crime is attached. 
Congress may not summarily send people to jail on charges of con¬ 
tempt, but Congress refers it to the regular judicial criminal branch. 
So, I think, as a matter of clear reason—I do not advance it as any¬ 
thing further than thab—the courts ought not to have a power over 
and beyond that possessed by coordinate branches of the Government. 

The only argument, on the other hand, that I know of is the argu¬ 
ment of convenience; a very unsafe argument to indulge in when 
questions of liberty are concerned. I think all questions ought to 
be solved in favor of the utmost perfection of individual liberty. I 
myself have the utmost sympathy with the main object to be gained 
by the bill. 

The Chairman. Right in that connection I call your attention to 
the case of Ex parte Robinson (19 Wall., 505, 510) and read you 
this extract, which is quoted with approval by the Supreme Court in 
the case of Bessette v. W. P. Conkey Co. (194 U. S., p. 327). The 
quotation is this: 

The power to punish for contempts is inherent in all courts; its existence is essential 
to the preservation of order in judicial proceedings and to the enforcement of the 
judgments, orders, and writs of the courts, and consequently to the due administra¬ 
tion of justice. The moment the courts of the United States were called into existence 
and invested with jurisdiction over any subject they became possessed of this power. 
But the power has been limited and defined by the act of Congress of March 2, 1831. 
The act, in terms, applies to all courts; whether it can be held to limit the authority 
of the Supreme court, which derives its existence and powers from the Constitution, 
mav, perhaps, be a matter of doubt. But that it applies to the circuit and district 
courts there can be no question. These courts were created by acts of Congress. 
Their powers and duties depend upon the act calling them into existence, or subse¬ 
quent acts extending or limiting their jurisdiction. The act of 1831 is, therefore, to 
them the law specifying the cases in which summary punishment for contempts may 
be inflicted. 

Do you think that is the law ? 

Mr. Ralston. I have no doubt of it. 


38 


CONTEMPTS OF COURT. 


Mr. Moon. I would like to call the chairman’s attention to the 
fact that the judge was construing the act of 1831, and he reaffirms, at 
the very beginning of that, that the moment the courts are created 
the judicial power is vested in them; and he affirms what the judicial 
power is that can not be taken away. The act of 1831 did not 
attempt to touch that judicial power. 

The Chairman. This language is used: 

Their powers and duties depend npon the act calling them into existence, or sub¬ 
sequent acts extending or limiting their jurisdiction. The act of 1831 is, therefore, to 
them the law specifying the cases in which summary punishment for contempts may 
be inflicted. 

Mr. Moon. It is perfectly apparent from reading the opinion that 
from his first definition, in which he says that there is a power above 
the legislature, the moment a court comes into existence it is 
vested with judicial power, and in the enumeration of that judicial 
power that can not be affected is the power to enforce its rules. 

Mr. Thomas. Do you hold that the court is above Congress, that 
created it ? 

Mr. Moon. Unquestionably, in certain respects. You would not 
suppose Congress could tell a court how it should decide a case ? 

Mr. Thomas. I would suppose it could limit its power. 

Mr. Moon. Not to enforce its own decrees ? 

Mr. Carlin. You are contending that the court has certain con¬ 
stitutional powers, and this would be one of them that Congress 
could not regulate by statute. Now comes in the decision and says 
that, so far as these courts are concerned, they are dependent upon 
the statute entirely, and we can make the statute what we please. 

Mr. Moon. You do not read the decision right. 

Mr. Carlin. That is my understanding of it. We have created 
that court. We could make the limitation then; we could do it now. 
We can abolish that court, if we see fit. 

Mr. Ralston. Now, Mr. Chairman, referring to the particular 
question to which the committee is now addressing itself, I call its 
attention to the fact that that very act of 1831 did away with a 
power of contempt which was theretofore claimed by at least one 
court; and to that extent it was an invasion, if you will, a repudiation, 
at least, of a claimed judicial power before that time, so that if I 
correctly read the very act, by cutting off part of the claimed powers 
of contempt of court, it went further than the act pending before 
this committee, which relates to the administration of a power which 
it is admitted has to remain within the court. 

There were two or three other matters to which I invite the atten¬ 
tion of the committee. The matter of limitation of punishment may 
not, I think, be too strongly urged. That is covered from one point 
of view, and a very excellent point of view, in Mr. Thomas’s bill. 
But I think there is extreme danger of abuse of judicial discretion in 
cases of this kind on the part of the court. Theoretically a contempt 
is a disobedience of a certain impalpable thing, something we may not 
put our hands upon, the law. But in point of fact it is a violation of 
the commands of a human being, although clothed in form of law; 
and it is very, very difficult for that human being to try a case of con¬ 
tempt without the personal feeling entering into it, and the difficulty 
is not removed when the question is sent to one of his associates, who 
is very likely, in a greater or less degree, to share either the indi- 


CONTEMPTS OF COURT. 


39 


vidual feeling of the judge whose orders have been violated, or the 
general feeling of the bench that whatever proceeds from the bench is 
sanctified itself. So that the work of the jury in breaking the force of 
those feelings is one of the very greatest possible importance, and of 
the greatest possible public advantage. 

Mr. Carlin. You seem to be willing to have interruptions, and 
for that reason I am tiying to get from you light upon the doubt 
in the minds of some of us about this. 

Mr. Ralston. Anything I could say, I should be very glad to say. 

Mr. Carlin. I will ask you this question: The trouble I am having 
to reach a conclusion is that I think I see a difference between a 
statute which would limit the power of the court itself and a statute 
transferring from the court to another tribunal, such as a jury, a 
power which belongs to the court. There is the difficulty. I have 
no doubt we could say to the court itself: “You shall not proceed 
any further/’ with such limitations with reference to contempt. 
“You shall proceed in such and' such a way.” But the question 
is whether, transferring now to a jury the right of trial of a question 
of fact as to whether there is a contempt, is depriving the court of an 
inherent power. 

Mr. Ralston. If I may say so, my way of dealing with the matter 
would be to allow courts to deal summarily with what are termed 
direct contempts, which are committed within their presence. In 
so doing they act, to all intents and purposes, as conservators of 
the peace. When they come to indirect contempts, however, which 
are committed far and away, generally, beyond the presence of the 
court, I think those ought to be made criminal cases and proceeded 
with as criminal. But that is not quite answering your question. 
I see no reason why a new procedure or new method of procedure 
may not be introduced here, if it be a new method of procedure. 
I do not think it is more than that, because if I understand the pur¬ 
pose of the bill, which I have read with more haste than I should 
like, it is to obtain the sense’of the jury upon the facts of the case; 
rather of an advisory nature, is it not, than conclusive? 

Mr. Carlin. That is the legal question raised, whether it is trans¬ 
ferring the power of the court to the jury. 

Mr. Ralston. We have that very condition prevailing, as we 
know, in equity, where issues of fact are repeatedly sent by the 
court to a jury to advise the court as to its opinion under the cir¬ 
cumstances. 

Mr. Moon. Is it not true that no law can compel that ? 

Mr. Ralston. It is true that it is not compelled bv law. 

Mr. Moon. It has been true that all laws attempting to compel it 
have been held unconstitutional, has it not? 

Mr. Ralston. I am not prepared to answer that. 

Mr. Moon. The court acts of its own volition ? 

Mr. Ralston. The court acts of its own volition. 

Mr. Thomas. Has a United States circuit court any such thing as 
an inherent power ? 

Mr. Ralston. I am not prepared on all questions of constitutional 
law to-day; but T should think it had no power except such as was 
conferred upon it. 

Mr. Thomas. Is not all the power of these courts conferred upon 
them by act of Congress ? 


40 


CONTEMPTS OF COURT. 


Mr. Ralston. That is correct. 

Mr. Thomas. And is it not the fact that they have no inherent 
power whatever ? 

Mr. Ralston. That is my impression. 

Mr. Moon. You would not say that, would you, Mr. Ralston, that 
the judicial power is not invested in them by tlieir creation? 

Mr. Ralston. That the court only has such powers as Congress 
could confer upon it. 

Mr. Moon. Could Congress say to a court that it should decide a 
case in such and such a way ? 

Mr. Ralston. Oh, no. 

Mr. Moon. Then there is no power beyond the judicial power. 

Mr. Ralston. But it can say, u You shall pass on such and &uch a 
class of cases and not on others/’ 

Mr. Moon. It has inherent judicial power that no power can take 
away. 

Mr. Thomas. I contend that these courts have no power of any 
character, inherent or otherwise, except what is conferred. upon 
them by the act of Congress creating them. What do you think 
about that? 

Mr. Ralston. I think that is true, except as to the Supreme 
Court of the United States. 

Mr. Thomas. I am not talking about the Supreme Court of the 
United States. Of course, that has constitutional powers, you know. 

Mr. Ralston. There is one matter, which, if you will pardon me, 
I think creates a difficulty which does not exist to-day. It is provided 
here that a warrant may issue, or what is equivalent to it, for the 
arrest of the person accused, who, under certain conditions, as to giv¬ 
ing bond, may be admitted to bail. Considering we are dealing with 
a court of equity and not a criminal court, I think that is hostile 
to the rights of the citizen. The ordinary proceeding in contempt 
cases, as I understand it, to-day is that the court upon showing being 
made to it issues a rule to show cause, and the attempt is made on the 
part of the respondent to show cause. But until the action of the 
court the respondent is under no obligation to furnish any security 
whatsoever. Under this provision men who are ultimately found 
innocent of any attempt or any desire to infringe the orders of the 
court may be held in jail for months, where to-day they go free. 

Mr. Davis. In practice does not an attachment frequently issue 
before the service of the rule ? 

Mr. Ralston. Not frequently. I would not say it is not so in 
some jurisdictions, but I speak with entire correctness when I say 
that the practice in all United States courts is as I say; that is to say, 
the rule to show cause issues first and the return is had, and then the 
trial is had. Sometimes, I am very confident, although I was mis¬ 
taken in the Phelan case, it is held on affidavit; in other cases it has 
been had upon a hearing before the court, and so on. But in the 
Federal courts, I think without exception, there is no attempt to hold 
a man to bail until there has been a finding of guilt. So that this 
provision in the statute is a provision against liberty rather than 
in favor of it. 

Mr. Sterling. You mean in the bill ? 


CONTEMPTS OF COURT. 


41 


.Mr. Ralston. In the bill. I say it is a provision against liberty 
rather than in favor of it, imposing a harsh and unusual restriction, 
which I respectfully submit ought not to exist. 

Mr. Norris. What means would be obtained, unless that or some 
similar provision were provided, to insure the presence of the party? 

Mr. Ralston. Ordinarily, at least, there is no difficulty to-day. 
Men can be traced up if there is a pending criminal proceeding. Of 
course, a man may go anywhere until he is indicted and then brought 
in, and then there is an official prima facie showing of guilt. 

Mr. Norris. In this case there would be a prima facie showing, 
would there not ? There would be a charge made here, the same 
as a charge made against a man who is alleged to have committed a 
crime ? 

Mr. Ralston. Yes; but made under quite different obligation of 
sanctity and protection for liberty, because the charges in these con¬ 
tempt cases are not ordinarily made by an officer of the Government, 
not presented to a grand jury by an officer of the Government, not 
passed upon, in the first instance, by people who have any oppor¬ 
tunity of sifting the evidence. But I think, in point of fact, the 
difficulty suggested has never arisen. I have never heard of its arising. 
Men, as a rule, have certainly sufficient confidence in the strength of 
their case to stand their trial. I have never heard of a person failing 
to answer. 

Mr. Norris. A man who would be apt to fail would be the man who 
was likely guilty, and the man who ought to be punished; he would 
be the man more likely to escape. 

Mr. Ralston. I can only say I know of no such case. They have 
always stood their ground, and if they did not, they would be subject 
afterwards, anyway, to indictment. 

There is another point which seems to me of importance, and I 
ought not to close this hearing, which has taken much more of your 
time than I expected, without referring to it. 1 suppose I ought to 
make the explanation that this particular point has been brought 
before me quite forcibly because of proceedings pending in the district 
court here. Thequestion I want to suggest to the committee is that 
as to the statute of limitations. In my view of the case, after having 
given it as careful study as I knew how as a lawyer, it has seemed to 
me that the existing statute of limitations applies to contempt cases; 
that contempts were made a crime by section 725; and in support of 
that particular view, the view that they were made a crime, I would 
refer the committee to a rather interesting case in 117 Federal 
Reporter, 184, Castner et al. v. Pocahontas Collieries Co. et al. 

Mr. Carlin. Was that a misdemeanor or a felony? 

Mr. Ralston. Treated as a misdemeanor. 

The Chairman. Right in that connection, in order to make the 
reference that you just quoted correct and bring it up to date, section 
725, I would ask that the reporter put down that section 725 is now 
embraced in section 268 of the act codifying and amending the laws 
relating to the judiciary approved March 3, 1911. 

Mr. Moon. It does not go into force until the 1st of January. 

The Chairman. That is true. 

Mr. Ralston. I submit that the case in question shows that con¬ 
tempt is a crime against the United States, and as such punishable 
by indictment. We have, of course, our statute of limitations 


42 


CONTEMPTS OF COURT. 


applying to all crimes, and the question is whether, by virtue of the 
old section 725, contempt of court is such a crime as that the statute 
of limitations runs against it. Based upon one case in the State of 
Illinois and another case in the State of Kentucky, I have thought, 
and have had occasion to contend, that the statute of limitations 
did directly apply to cases of contempt. 

Mr. Thomas. What Kentucky case is that? 

Mr. Sterling. Are you going to file your brief with the committee? 

Mr. Ralston. I had not thought to file a brief, but these are some 
notes I had. Gordon v. Commonwealth (133 Southwestern, 206) is 
the Kentucky case, and the Illinois case is Beattie v. People (33 
Ill. App., 651). 

I was going to sa}^ that those are the only two cases I know of that 
directly, and, as I say, specifically, apply to this subject. But it is 
proper for me to add that upon the argument of that question before 
a justice of this city a couple of weeks ago he decided against me. I 
therefore think, very frankly, that there is no reason why a statute 
of limitations which will apply to offenses of the very gravest possible 
character should not by your act be made to apply to questions of 
contempt, which are very often of the most trivial character. 

Mr. Carlin. You suggest that this be amended to make that apply ? 

Mr. Ralston. To cover that "specific point. Of course, I am not 
asking that it cover pending actions. I would have no right to do it, 
and you gentlemen ought not to do it. 

Mr. Moon. We could not do it. 

Mr. Ralston. We have to stand our chances as to pending actions. 
But I think it ought to be put beyond all question for the future, that 
contempt is simply an offense as any other offense, and to be treated 
like any other. 

Mr. Moon. Did not the Supreme Court, in the Savin case, decide 
it was not an offense ? 

Mr. Ralston. I think not. 

Mr. Moon. Did it not arise in this way ? He was sentenced for six 
months, and did he not attempt to take advantage of the parole law, 
which gave him 30 days, and did it not come before the court, and 
did not the court say it is not an offense against the United States, 
and he was not entitled to commutation ? 

Mr. Ralston. I do not recall; you may be right. But in a very 
large number of cases, including this last case of Mr. Gompers, the 
Supreme Court speaks of cases of contempt as being criminal in their 
nature. 

Mr. Moon. They always speak of it that way, because-they are such 
cases as can not be classified in any other way. 

Mr. Carlin. They are not proceeding by indictment, are they ? 

Mr. Ralston No; they are not proceeding by indictment. 

Mr. Carlin. How are they proceeding now? 

Mr. Ralston. They are proceeding now in a rather unusual way, 
but I think a legally correct way; in form, at least. I think there 
are other defects, which I need not mention. A committee of three 
were appointed by the court to report to the court whether there was 
reasonable ground to believe that a contempt had been committed. 

Mr. Carlin. That is a jury of three, practically? 

Mr. Ralston. It was a grand jury, if you will. 

Mr. Carlin. To find the fact? 


CONTEMPTS OF COURT. 


43 


Mr. Ralston. To find and determine and. report to the court 
whether there was reasonable ground to think a contempt had been 
committed. The committee of three, which consisted of the three 
lawyers who had been opposing Mr. Gompers, reported to the court 
that there was reasonable ground to think that he, Mitchell, and 
Morrison had been guilty of contempt. Thereupon a rule to show 
cause was issued against the three respondents, and served upon 
them. 

Mr. Carlin. Is there any statute, or rule, or practice, confining 
the court to three ? 

Mr. Ralston. No. 

Mr. Carlin. It could have had twelve ? 

Mr. Ralston. There is no rule of practice governing or controlling 
it in the slightest degree. It has been a practice which has been 
resorted to on some few occasions. It was resorted to a few months 
ago in Cincinnati, in a case where, I think, Mr. Cox was charged with 
contempt of court. The judge referred the matter to a committee 
of three, to report whether there was reasonable ground to think he, 
or whoever it was, had been guilty of contempt; and they did, and 
that same procedure was followed, as it happened, in this particular 
case, and has been followed in prior cases. 

Mr. Sterling. If a petition, sworn to, was filed, making a prima 
facie case, would the court enter a rule to show whether or not con¬ 
tempt had been committed ? 

Mr. Ralston. Yes. 

Mr. Sterling. Is not that the customary practice? 

Mr. Ralston. That is more nearly the customary practice than the 
appointment of a committee to make an investigation. 

Mr. Carlin. In principle what is the difference between the ap¬ 
pointment of a committee to ascertain a given state of facts and im¬ 
paneling a jury to ascertain them? 

Mr. Ralston. I confess I am not able to draw the line, as a matter 
of practice. 

Mr. Floyd. One precedes. The trial of the jury would come after 
the charge was made. It would be more in the nature of a grand jury. 

Mr. Norris. The jury has to try the issue already made up, and 
this committee has to fix the issue. 

Mr. Carlin. The juiy merely ascertains whether the contempt has 
been committed after the appointment of this committee, as I under¬ 
stand it from Mr. Ralston; they simply ascertain and report to the 
court whether there is reasonable ground to believe a contempt has 
been committed. 

Mr. Ralston. Yes. 

Mr. Norris. But Mr. Gompers is not heard before this committee. 
It is like a grand jury. It is an ex parte proceeding. 

Mr. Moon. Apparently a substitution for the petition ? 

Mr. Norris. Yes. 

Mr. Ralston. Except, of course, the petitioner expresses ins own 
belief, and the court puts its judicial confidence in the three men who 
make the report to it. . 

Mr. Carlin. At the suggestion of some members of the committee 
we think we see a similarity between the present proceeding and what 
is contemplated by this bill, except in one instance you call it a com¬ 
mittee, and in this bill we call it a jury. How does the committee 


44 


CONTEMPTS OF COURT. 


proceed to ascertain the fact as to whether there is reasonable ground 
to believe that a contempt has been committed ? 

Mr. Ralston. I can only answer that question—I presume I can 
answer it—by a reasonable surmise in the present case. The com¬ 
mittee consisted of the three lawyers who had fought the contempt 
case on behalf of the Bucks Stove & Range Co. up to the Supreme 
Court, and they merely had before them the record of the case, and 
perhaps some outside knowledge on their part; that is as good an 
answer as I can make. 

Mr. Carlin. They did not examine witnesses ? 

Mr. Ralston. Naturally, I was not in their confidence, and they 
did not examine witnesses. There was no hearing, of course, at all on 
behalf qf the respondents in the determination of that question. The 
only knowledge of theirs was that a newspaper announcement had 
been made of their appointment, and afterwards, in due course, the 
service of the rule to show cause, with a copy of the report. 

Mr. Floyd. What are the names of the three lawyers who consti¬ 
tuted that committee ? 

Mr. Ralston. Mr. Davenport, who has appeared before this com¬ 
mittee, Mr. J. J. Darlington, and Mr. James M. Beck. 

Mr. Sterling. Do you think there is a tendency in the courts to 
abuse this power to punish for contempt ? 

Mr. Ralston. I' do not know that I would put it quite that way. 
To say there is a tendency implies that they are more apt to do it 
to-day than they have been in the past. I would not be able to say 
that. 1 think the judge is always exposed to a temptation to abuse. 
I think that is inherent in human nature and no law can get way 
from it, because personal feeling enters into it in so many cases. 

Now, Mr. Chairman, I have detained you too long. 

Mr. Thomas. Mr. Ralston, I wish to a,sk you this question: Do you 
believe that the Supreme Court of the United States has any power 
or authority except that conferred upon it by Congress ? 

Mr. Ralston. The Supreme Court of the United States? 

Mr. Thomas. The Supreme Court. 

Mr. Ralston. Yes; I think so. 

Mr. Thomas. Where does it get it ? 

Mr. Ralston. The Supreme Court is given power to pass upon cer¬ 
tain classes of cases. 

Mr. Thomas. Where does It get the power? 

Mr. Ralston. By the Constitution. It has jurisdiction of disputes' 
between States, and ambassadors- 

Mr. Thomas. Yes; ambassadors, ans such as that. That is defined 
by the Constitution. 

Mr. Ralston. Yes. 

Mr. Thomas. It has original jurisdiction, has it not ? 

Mr. Ralston. Yes. 

Mr. Thomas. Could not the Congress of the United States limit 
the power of the Supreme Court to punish for contempts? 

Mr. Ralston. I would not like to give an offhand answer to that 
question. It is one I have never given any proper consideration to. 

Mr. Thomas. If they can not do it, why can they not do it? Is 
there anything in the Constitution that forbids it ? 

Mr. Ralston. There- is nothing that, offhand, occurs to me; but I 
would not like to commit myself by any conclusive answer. 


CONTEMPTS OF COURT. 


45 


Mr. Carlin. Suppose a court, following the precedent in Washing¬ 
ton, were to select a committee of four gentlemen to ascertain and 
report to the court whether there was reasonable cause to believe a 
contempt had been committed, and the committee should divide, 
two reporting that there was not reasonable cause and two reporting 
that there was reasonable cause, what condition would the court find 
itself in as to proceeding further? 

Mr. Ralston. I can only say that in this particular case I do not 
know that it would have introduced any special difficulty, because 
Mr. Justice Wright stated on the bench that if the committee had 
found any differently he would have set aside their report. 

Mr. McGillicuddy. Is not the report of that committee merely 
advisory, in any event ? 

Mr. Ralston. Yes. 

Mr. McGillicuddy. The court is not bound by it at all ? 

Mr. Ralston. No. 

Mr. Norris. The court could disregard their finding if they reported 
against it, and make the rule any way. 

Mr. Ralston. No; not make the rule any way, because in cases 
of indirect contempt the court must have a sworn accusation in some 
shape before it before it can act. 

Mr. McGillicuddy. Is it your idea in this proposed substitution, 
referring these questions of fact to a jury, to make the finding of the 
jury conclusive, or merely advisory? 

Mr. Ralston. I think the finding of the jury ought to be con¬ 
clusive. 

Mr. Moon. It is in this bill. 

Mr. McGillicuddy. Yes; I understood it was. 

Mr. Ralston. I thank you, gentlemen, for your courtesy. 

Mr. Carlin. We are obliged to you, Mr. Ralston. 

Mr. Henry. Just at this particular juncture, on account of the 
turn that the discussion has taken, I want to make a statement of a 
few moments. I have to leave in a little while to keep another 
engagement. Some of us remember when the Swayne impeachment 
case was up. Judge Swayne was a judge in Florida, and he had 
undertaken to punish some lawyers there, two of them unnecessarily, 
and had disbarred two of them for 12 months, and gone beyond the 
terms of the contempt statute, and in the very teeth of a decision of 
the Supreme Court. I do not think we will have much difl[iculty 
sustaining the constitutionality of this act, and I want to meet every 
question candidly, as this committee should, and will. The case I 
want to call your attention to 1 —and I know every one of you will 
read it—is the Robertson case in 19 Wallace, which was a case which 
came up from Arkansas, and the Federal judge there had undertaken 
to disbar a lawyer and take his license away from him. It is a very 
short case, and I want to call your attention to two or three sen¬ 
tences in it, and in doing that 1 will touch upon the question raised 
by Mr. Thomas, of Kentucky. * Mr. Justice Field delivered the 
opinion, and said: 

The power to punish for contempts is inherent in all courts. 

We will concede that. The Supreme Court says it. 

The moment the courts of the United States were called into existence and invested 
with jurisdiction over any subject they became possessed of this power. 


46 


CONTEMPTS OF COURT. 


We will admit that. 

But the power has been limited and defined by the act of Congress of March 2, 1831. 

That was the act passed after the Peck impeachment case, a 
Missouri Federal judge. We went over that case time and time 
again when we had this Swayne impeachment case up. 

The act, in terms, applies to all courts; whether it can be held to limit the author¬ 
ity of the Supreme Court, which derives its existence and power from the Consti¬ 
tution, may, perhaps, be a matter of doubt. 

We can also understand when the Supreme Court has exhausted 
its original jurisdiction, then Congress might have the power to 
pass a statute setting limits beyond which the Supreme Court, even, 
could not go. 

But that it applies to the circuit and district courts there can be no question. These 
courts were created by act of Congress. Their powers and duties depend upon the 
act calling them into existence, or subsequent acts extending or limiting their juris¬ 
diction. The act of 1831 is, therefore, to them, the law specifying the cases in which 
summary punishment for contempts may be inflicted. It limits the power of these 
courts in this respect to three classes of cases. 

And the three classes are as follows: 

(1) Where there has been misbehavior of a person in the presence of the courts, 
or so near thereto as to obstruct the administration of justice. 

(2) Where there has been misbehavior of any officer of the courts in his official trans¬ 
actions. 

(3) Where there has been disobedience or resistance by any officer, party, juror, 
witness, or other person, to any lawful writ, process, order, rule, decree, or command 
of the courts. 

We do not propose to undertake to take the power of punishing 
for contempt away from the courts, but we do propose to limit it and 
lay down a method by statute under which they shall proceed. It 
is a method of procedure. 

The law happily prescribes the punishment which the conrt can impose for con¬ 
tempts. The seventeenth section of the judiciary act of 1789 (1 Stat. L., 73) declares 
that the court shall have power to punish contempts of their authority in any cause or 
hearing before them by fine or imprisonment, at their discretion. 

I call your attention to this sentence particularly: 

The enactment is a limitation upon the manner in which the power shall be exercise, 
and must be held to be a negation of 11 other modes of punishment. The judgment 
of the court disbarring the petitioner, treated as a punishment for contempt, was there¬ 
fore unauthorized and void. 

Now, gentlemen, you can take that case and analyze it. It leaves 
no doubt in my mind that we have authority to set the limits and 
say that these inferior courts created by Congress under the third 
article of the Constitution, first clause, are subject to our right to 
deal with those creatures as we please. We might curtail that power 
in various ways to punish for contempt. No one proposes to take 
the power away from them; this bill does not propose to do it, but it 
lays down a plain method of procedure, and it does not lessen the 
dignity of these inferior courts. I understand that it has been 
contended by a Senator in the Senate that the judicial power means 
all the power that any court in England possessed when our Consti¬ 
tution was adopted. But there were those who answered him in the 
Senate and overwhelmed him in that argument and established the 
fact that Congress had a right to limit these inferior judicial tribunals 
created by Congress. I do not think there is anv doubt about it. 


CONTEMPTS OF COURT. 


47 


There is no doubt in my mind that we have the right to set these 
limits here by statute and to amplify that statute of 1831 and sub¬ 
divide contempts, as Mr. Justice Field did in his decision. 

Mr. Sterling. Mr. Henry, I agree with you on that proposition, 
that we have a right to limit or extend this power. But does this 
bill simply propose to extend or limit the power? Is it not destroy¬ 
ing altogether the power of the court to enforce a decree; that is, in 
taking it out of the power of the court and submit it to another 
tribunal? If it does that, it is not a limitation or an extension; it 
is a destruction. 

Mr. Henry. Xo more a destruction of the power than for us to 
say a defendant in any criminal case is entitled to trial bv jury. 
There is not one particle of distinction, because the Federal judge 
then imposes the punishment after the jury passes on the guilt, 
and you are assuming that the juries are going to acquit everyone. 

Mr. Sterling. No; I am not assuming. It is transferring the 
authority to some other tribunal than the judge. 

Mr. Carlin. 1 am in thorough sympathy with the principle laid 
down in this bill. I think the chairman of the committee lias drafted 
a pro posed bill which shows great thought and study—careful thought 
and study. But the very suggestion made by our friend, Mr. Sterling, 
seems to have been made in the Gompers case, and I want to ask you 
what you would do with this. 

Mr. Henry. All right. I know what you are going to say. 

Mr. Carlin (reading): 

There has been general recognition of the fact that the courts are clothed with this 
power, and must be authorized to exercise it without referring the issue of fact or law 
to another tribunal or to a jury of the same tribunal. 

That is the language of the Supreme Court. 

Mr. Henry. In the first place, that is obiter dicta: and, in the 
second place, he says where you take the power away from the judge 
and transfer it to another tribunal—which we are not doing—we are 
providing a method of procedure, and we are not interfering with the 
power at all. 

Mr. Carlin. The court does not say that. The court says you 
must not refer the issue of fact or law to another tribunal or to a 
jury of the same tribunal. 

Mr. Henry. That is obiter dicta there—“so as to take the power 
away from the court,” he says. 

Mr. Moon. I want to say, Mr. Henry, I do not want by silent acqui¬ 
escence to accept your statement. I think I can controvert it so 
absolutely that even you will yield. But I do not want to take the 
time of the committee while there are other people here to be heard. 

Mr. Thomas. I would like to hear from you. 

Mr. Moon. You will, later on. 

STATEMENT OF MR. HORACE PETTIT. 

The Chairman. Mr. Pettit, we do not propose to limit you, but 
what time do you desire ? 

Mr. Pettit." Mr. Chairman, I believe I can conclude all I desire to 
say in ten minutes. 

The Chairman. Very well; you may proceed, first stating your 
name and address. 


48 


CONTEMPTS OF COURT. 


Mr. Pettit. My name is Horace Pettit, of Philadelphia. I am 
practicing in the United States courts principally in the eastern dis¬ 
trict of Pennsylvania and the southern district of New York. 

I apprehend, especially in the particular class of cases that I am in, 
namely, patent suits, that should this bill go through great difficulty 
will be experienced in enforcing the decrees of the courts and a very 
large amount of additional expense will be involved. 

Mr. Davenport has touched upon and argued quite liberally the 
question of the legality and constitutionality of this act. It seems to 
me that the Gompers decision has practically decided most of the 
questions involved in this bill. According to my reading, it would 
seem to me that Justice Lamar has decided there in the language 
that has been previously quoted by Mr. Davenport and referred to 
by one of the gentlemen of the committee, that the power can not be 
taken away from the courts and transferred to a jury to determine 
the question of contempt of a decree of the court. The court is always 
very jealous of its decrees, as we all know, and of its orders, and there 
is a long line of cases, as we all know, of how particular a court is that 
its decrees shall be strictly observed and enforced. To take away 
from the court, from the judge who enters the decree, the power to 
enforce that decree, to my mind would practically shake the founda¬ 
tions of the courts themselves. 

The Circuit Court for the Southern District of New York has seen 
fit to very strictly construe and put a new construction upon the 
question of contempt, based on the Gompers decision. In a case 
which I had before the circuit court, recently, and before Judge 
Lacomb, of contempt for the violation of a decree of the court based 
upon infringement of a patent, the court held that in view of the 
Gompers case the defendant could not be punished bv imprison¬ 
ment. even though it were clearly shown that he had flagrantly 
infringed the decree, nor could he be punished by fine unless the 
complainant shows a material damage and injury suffered by the 
contempt acts, and then he can only be punished to the extent of 
that damage shown by the complainant. That of itself is a very 
embarrassing situation, because it presents this: A decree is entered 
enjoining a defendant from infringing, we will say, a patent, as an 
illustration. The defendant disregards that decree, of course, and he 
is then brought in under an order to show cause why attachment 
should not issue. Under the decision of the circuit court the court 
can not, according to Judge Lacomb’s decision in the case of Victor 
Talking Machine Co. against Segal, which 1 have here, hold the 
defendant in fine unless the amount of damage is shown, and then 
only to that extent; and he can not be imprisoned. Whether that 
decision is right or not remains to be seen. The question is coming 
up in the circuit court again in the southern district of New York in 
another case. 

Mr. Moon. Have other courts besides Judge Lacomb’s court so 
construed the Gompers decision ? 

Mr. Pettit. I know of no other such case as yet. In one of these 
cases in the circuit court in the southern districtof New York follow¬ 
ing, as they understand, the Gompers decision, information has been 
lodged by the district attorney and a warrent issued for the arrest of 
the infringer, and the judge is to try that case sitting as the com¬ 
mitting magistrate. That may solve possibly the difficulties of this 
interpretation of the decision of the Gompers case, if it is correct. 


CONTEMPTS OF COURT. 


49 


But it seems to me, speaking to the present bill, that the Gompers 
case practically decides the question that the punishment for con¬ 
tempt can not be relegated away from the judge or the court to a 
jury, but that it is the inherent right of the court to punish its own 
contempts, or to punish the acts of contempt committed as to its 
decrees. 

^ Why, then, change the present legislation? My inclination, Mr. 
Chairman, if anything, would he to slightly enlarge the powers of 
the court to punish in view of the interpretation placed upon the 
decision by the southern district of New York. However, that will 
possibly work out, and there may be methods and ways with out 
any amendment. 


The new judicial code going into effect on January 1, as I under¬ 
stand it in this regard, section 268 is practically a copy of and the 
same as section 725 of the Revised Statutes. 

Mr. Moon. Exactly; word for word. 

Mr. Pettit. Section 725 has been before the courts time and time 
again in hundreds of cases, and has been construed. To make new 
legislation at this time without, to my mind, so far as I can see, any 
particular reason for it is going to practically undo all the work that 
has been done, and we lose the benefit of constructions which have 
been given to this section of the statute by the courts. I have not, 
with all due deference to the other gentlemen who have spoken here, 
heard any very good reason why a jury should intervene, why the 
question of contempt acts should be taken away from the courts and 
relegated to the jury. 

The procedure in contempt cases, in the Federal courts, is as has 
been indicated here. It may be by affidavit, and many cases perhaps 
have gone through on affidavit; but the party has the right to have 
witnesses called in open court and to have the judge himself there, 
with the witnesses before him, to determine whether or not the acts 
charged in the petition for attachment are true and correct. The 
judge then determines whether or not there has been a contempt and 
metes out proper punishment. 

Mr. Moon. And the affidavit of the person charged is taken as a 
verity ? 

Mr. Pettit. Exactly. 

Mr. Moon. He can purge himself in that case ? 

Mr. Pettit. Under the Gompers decision the court practically 
holds that, except in mandatory injunctions, the punishment in a 
civil case can not be inflicted by imprisonment, but by fine only. The 
court also, in the Gompers case—and, as I say, it seems to me it covers 
all these questions—has shown that this discretion of the court must 
be most carefully exercised. If gross abuse of discretion is present 
it is reviewable and would protect the defendant or the violator of 
the decree, so that he might have the right of appeal from any exer¬ 
cise of gross discretion. 

I can see from a practical standpoint should this bill go through, 
that we are going to be most materially handicapped in the practical 
operation of^the procedure proposed. As I say now, as it is, we are 
having great difficulty in many cases by reason of this present con¬ 
struction of having the defendants fined properly or imprisoned, if 
the circumstances warrant it, for disobedience of a decree of the court, 

20502—11-4 


50 


CONTEMPTS OF COURT. 


Mr. Thomas. I do not wisli to interrupt the gentleman, but could 
you not make the same argument along that line in favor of the aboli¬ 
tion of all jury trials in every case? 

Mr. Pettit. Oh, no, sir. 

Mr. Thomas. I do not see why. 

Mr. Pettit. From time immemorial it has been true that a court’s 
decrees—in fact, from the very nature of the organization of a court— 
must be enforced; that the court itself has the inherent right to 
enforce its own decrees. To intervene with a jury, even if it were 
constitutional, or were legal, would, as I say, complicate and involve 
the situation and prolong the matter indefinitely, involving expense 
that would be very material, looking toward an expeditious proce¬ 
dure of the enforcement of the decrees of the court. 

Mr. Chairman and gentleman, I thank you for your attention, and I 
trust sincerely that this bill will not go through. It seems to me it 
would have most disastrous results, and will involve litigants in ex¬ 
pense and delay that is unnecessary and unwarranted, and with all 
due respect to the gentlemen who have proposed the bill and intro¬ 
duced the bill or suggested it, and those who are in favor of it, I can 
see no good reason why the present law should be changed. 

Mr. Thomas. I do not wish to ask anything to be captious or to 
embarrass you; I am simply after information- 

Mr. Pettit. Yes, sir; I understand. 

Mr. Thomas. Has the Supreme Court of the United States any 
power except the power conferred on it by the Constitution and the 
acts of Congress ? 

Mr. Pettit. That is all. 

Mr. Thomas. Has the Supreme Court any power to punish for 
contempt except that provided by statutory law ? 

Mr. Pettit. It has the inherent right conferred upon it by the Con¬ 
stitution to do all that a judicial tribunal can or should do m order to 
enforce its decrees. 

Mr. Thomas. Please refer me to that article of the Constitution 
conferring that power. 

Mr. Pettit. It would not, perhaps, be specified in so many words, 
but the organization of that court, under and by virtue of the Con¬ 
stitution, would necessarily vest in that court that right to carry out 
all things judicial, even if there was not a statute at all. 

Mr. Thomas. Has not the Supreme Court certain jurisdiction 
specifically conferred on it by the Constitution ? 

Mr. Pettit. Certainly. 

Mr. Thomas. Has it any other jurisdiction conferred on it by the 
Constitution, except what is conferred by statutory law? 

Mr. Pettit. It has no other jurisdiction than that which is given it 
specifically. 

Mr. Thomas. Then why can you, or anybody else, find out why it 
has any right to punish for contempt at all, except as conferred by 
statutory law ? I am asking for the law. If you or anybody else can 
point it out, I will read it with pleasure. 

Mr. Pettit. As I say, the Constitution, in the organization of the 
court, gives to that court the right and power and vests in it the right 
and power to do everything that is there judicially required of a 
judicial tribunal. 

|§|Mr. Sterling. May I ask the gentleman a question? 



CONTEMPTS OF COURT. 


51 


Mr. Thomas. Certainly. 

Mr. Sterling. Suppose there were not any Federal statutes; do you 
not think the Supreme Court would have power to punish? 

Mr. Thomas. I do not. I think all the power the Supreme Court of 
the United States has is in the Constitution and in the statutory law. 
If you, or anybody else, will point out anything else they have, I 
will submit; but not any of you can do it, because the Consti¬ 
tution defines the powers of the Supreme Court of the United States, 
and the Constitution limits the powers of the Supreme Court of the 
United States. It gives them powers over ambassadors, and between 
citizens of the different States. It absolutely fixes and limits it. 

Mr. Norris. If the Supreme Court would not have any power of 
that kind, how could they enforce any decree? 

Mr. Thomas. By statutory law. 

Mr. Norris. If we did not have the statutory law providing for 
their enforcement ? 

Mr. Thomas. We have a Congress to pass that. 

Mr. Norris. I understand that; but if they did not pass a law, they 
could not enforce their decrees. 

Mr. Thomas. That is a supposition which is impossible. 

Mr. Norris. We might not have necessity for- 

Mr. Thomas (interposing). Then they have no power. 

Mr. Norris. And there would be no other way ? 

Mr. Thomas. They would have no power if they did not have the 
statute. 

Mr. Moon. It has been held one hundred times they have it inde¬ 
pendently of any statute. It has been stated a court would be too 
low for contempt if it could not protect itself against contempt. 

Mr. Thomas. In this case of Bassett against Conklin, it is said that 
Congress has the right to define and limit the power to punish con¬ 
tempt. 

Mr. Norris. I do not think, even taking that contention, it would 
follow, if we did not define it, that they would not have the power. 

Mr. Thomas. Why not say the Supreme Court itself could exist 
independently of Congress, if no act had been passed creating the 
Supreme Court ? 

Mr. 'Moon. It could. It is created by the Constitution. It does 
not depend on Congress at all. 

The Chairman. Mr. Pettit, have you concluded ? 

Mr. Pettit. Yes, Mr. Chairman. 

The Chairman. If you desire to file any statement or brief with 
the committee, you may do so within three or four days. 

Mr. Pettit. Thank you, Mr. Chairman. 

Mr. Emery. Mr. Chairman- 

The Chairman. Will you please state your name and residence ? 

Mr. Emery. My name is James A. Emery; I am general counsel 
of the National Association of Manufacturers. 

The Chairman. What is it you desire to say ? 

Mr. Emery. In appearing before this committee, I will also repre¬ 
sent a very large number of commercial and industrial organiza¬ 
tions, a list of which I will file with the committee. 

The hour is already late, and I am under the unfortunate necessity 
of leaving the city, and I presume the committee is somewhat tired 
by the strenuous thought it has given to this very interesting sub- 




52 


CONTEMPTS OF COURT. 


ject, and I should like to ask that the committee will permit me to 
be heard on Saturday morning. I have to be out of the city 
to-morrow, or I would make it any time to-morrow that suits the 
convenience of the committee. 

Mr. Moon. I hope you will not make it Saturday morning, because 
I can not be here. 

Mr. Thomas. I move we hear the gentleman on Saturday morning. 

Mr. Emery. Mr. Moon, can you be here Saturday afternoon or 
Monday morning ? 

Mr. Moon. I can be here Monday morning. 

Mr. Emery. Can the committee hear me on Monday morning, 
then ? 

The Chairman. That is with the committee. I suppose we want 
to conclude the hearings, and then take up this matter in executive 
session of the committee. 

Mr. Moon. Mr. Davenport, for instance, will require three or four 
days to publish. We certainly would not want to take this up for 
consideration until they get these published reports. 

The Chairman. Certainly not. The point I was suggesting was 
that it is impossible for the committee to accommodate itself to the 
desires of every gentlemen who wants to be present. 

Mr. Moon. Undoubtedly; I understand that. 

The Chairman. The committee would like to conclude these 
public healings and then get down to the real work that the com¬ 
mittee has in hand of considering this subject in a detail way. 

Mr. Emery. If you will permit me, I am sure the committee needs 
no word from any outside source as to the imporatnce of this ques¬ 
tion. Indeed, it is revolutionary in its proposals, and I am repre¬ 
senting a very large number of important business interests through¬ 
out this country who will be greatly affected by procedure of this 
character, and while I dislike greatly to delay the proceedings of the 
committee and will not do so absolutely beyond the time you have 
given me for hearing, if you can put it on Monday morning, I would 
very greatly appreciate it, because I am returning here on Saturday 
to keep this engagement. 

Mr. Sterling. I would like to suggest in behalf of three members 
of this committee, who are members of the Steel Investigation Com¬ 
mittee, that there is a meeting set for that committee on Monday 
morning. Personally I will not ask any change in the desires of this 
committee, however. 

Mr. Carlin. This is an important question, Mr. Chairman. I 
think there should be some deference shown to the wishes of the 
members. We have had a goodly attendance, and I think we will 
continue to have it, but I think we would like to hear the gentle¬ 
man. I hope we will be able to fix some day which will suit the 
convenience of all the members of the committee. 

The Chairman. Could you be here Saturday? 

Mr. Emery. Yes, sir; I can; but Mr. Moon can not. 

Mr. Moon. I will have to read the proceedings, then. 

Mr. Thomas. When will it suit you, Mr, Moon? 

Mr. Moon. I have not any right to direct this committee, but I do 
feel this matter is of too great importance to be rushed through in a 
few days or to pass without any consideration whatever. We have 


CONTEMPTS OF COURT. 53 

the whole session before us, and we shall not legislate upon any more 
important subject than this matter during this session. 

The Chairman. In justice to the committee, Mr. Moon, permit me 
to say the committee was called together last summer for the purpose 
of considering this measure, and the suggestion was then made to let 
it go over until this session in order to have this hearing and expedite 
the determination of the consideration of the measure. It was car¬ 
ried over until this session, and public notice was given in the press 
repeatedly that this hearing would be had. This committee has a 
multitude of other things to consider, and the consideration of this 
bill is made a continuing order, and therefore, under the precedent of 
the former chairmen of this committee, nothing can displace it. You 
will remember that arose in the alcoholic liquor case, where Mr. 
Littlefield insisted upon the continuing order, and you will recollect 
how that blocked the business of the committee for some days, if not 
weeks. In order to dispose of that continuing order and its onerous 
burden, in view of the work before the committee and this continuing 
order, and in the light of the experience we have had in cases occupy¬ 
ing a similar position with this one before the committee, I have made 
the suggestion that we ought to conclude the hearing as early as 
possible. I am sure there is no disposition on the part of anybody 
not to have a full and ample hearing, and it might also be observed 
that not a single man has appeared here to-day to make an argument 
in behalf of this bill, and it seems to me those in opposition to the bill 
have already had one day, and the committee has indulged them, and 
nobody has appeared here to make an aigument in behalf of the bill. 

Mr. Moon. Mr. Ralston appeared in behalf of the bill. 

The Chairman. Mr. Ralston did not come in behalf of the bill. I 
simply wrote a note to him suggesting that in view of his participa¬ 
tion in measures similar to this- 

Mr. Moon (interposing). I do not care how he came. He was here 
in behalf of the bill. 

The Chairman. He said to the committee very frankly he had not 
given consideration to this measure; but assuming that he did come, 
Mr. Ralston has concluded his statement and has occupied but a very 
small portion of the time to-day. The committee can do as it pleases, 
and I shall acquiesce cheerfully in whatever the committee chooses 
to do, but it seems to me the request preferred by the gentleman to be 
heard Saturday is one that should be granted by the committee. 

Mr. Emery. If you will pardon me, Mr. Chairman, you referred to 
the opponents of the bill having been heard first. It is a decided dis¬ 
advantage to the opposition to be compelled to prove the negative- 

The Chairman (interposing). You misunderstood me. Mr. Ral¬ 
ston started to make his statement, and at Mr. Davenport’s request 
the matter was suspended and the opponents of the bill were then 
heard. Mr. Ralston then concluded his remarks, and then Mr. Pettit 
appeared in opposition to the bill, and now you are here in opposition 
to the bill, which is all proper, and we are glad to have you. 

Mr. Emery. I will be very glad to suspend and hear the propo¬ 
nents first. 

The Chairman. These hearings are more or less informal. We are 
compelled by the nature of things to proceed in that way The com¬ 
mittee is very much obliged to you for suggesting the manner of its 
procedure, but it must be the judge of that itself. 





54 


CONTEMPTS OF COURT. 


Mr. Emery. Please do not understand ine to suggest anything of 
that sort, Mr. Chairman. 

The Chairman. It is for us to say what time you will be granted 
for hearing. You have asked for Saturday- 

Mr. Thomas (interposing). But Judge Moon says he can not be 
here Saturday. 

The Chairman. Judge Moon has waived that privilege. 

Mr. Moon. I have never in my experience, Mr. Chairman, seen a 
great, important, and overwhelming subject like this hurried through. 
I think if these people came here on account of the business inter¬ 
ests involved ana asked for two weeks or three weeks or four weeks, 
it would be the duty of this committee to give that time to them. 

Mr. Thomas. I am particularly anxious to hear Judge Moon on 
this subject, because I think he is one of the best lawyers in the 
House. I do not expect to agree with him, but I want to hear him, 
anyway. 

Mr. Emery. I would ask you to note, Mr. Chairman, that since 
this bill has been proposed for public hearing there has been on my 
behalf a request for opportunity to be heard, and I think it has been 
in your possession for six or eight months. 

The Chairman. The chairman has signified the willingness of the 
committee to hear you, and you are here and now you ask that that 
hearing, on account of the lateness of the hour, be extended over 
until Saturday. 

What is the pleasure of the committee ? 

Mr. Thomas. I move that the request be granted. 

The Chairman. Very well; we will hear Mr. Emery at 10.30 o’clock 
Saturday morning next. 

Mr. Sterling. There may be other gentlemen who wrnuld like to 
be heard to-morrow. 

The Chairman. The committee will then meet, under the order 
which we adopted to-day, at 10.30 to-morrow morning, and if any¬ 
body else appears to be heard then, we will hear them. If no outsider 
appears, I suggest the committee themselves might engage in an 
informal discussion. It may be Representative Wilson can be heard 
to-morrow at 10.30. With that understanding the committee will 
now stand adjourned until to-morrow morning at half-past 10 o’clock. 

(Thereupon, at 4.30 o’clock p. m., the committee adjourned until 
to-morrow, Friday, December 8,1911, at 10.30 o’clock a. m.) 


Friday, December 8, 1911. 

The committee met at 10.30 o’clock a. m., Hon. Henry D. Clayton, 
chairman, presiding. 

The Chairman. The committee will be in order. The committee 
has met this morning after recess, which was provided for in the 
original motion controlling the deliberation of the committee for 
hearings on the contempt bill, and Representative Wilson of Penn¬ 
sylvania now desires to be heard. 




CONTEMPTS OF COURT. 


55 


* STATEMENT OF HON. WILLIAM B. WILSON, A REPRESENTA¬ 
TIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA. 

Mr. Wilson. Mr. Chairman, gentlemen of the committee, in 
appearing before the committee I do not do so in the capacity of a 
man learned in the law. I am not a lawyer and do not propose to 
discuss the principles embodied in the bill from the standpoint of a 
lawyer or from the standpoint of its constitutionality as it appeals 
to a lawyer, but as it appeals to an ordinary layman—a workingman. 
I favor the bill pending before the committee (H. R. 13578), with 
amendments at two parts of the bill if they can be secured. But I 
am in favor of the bill whether those amendments can be secured or 
not. In favoring the bill I do not believe it will solve entirely the 
question which organized labor has been presenting to the con¬ 
sideration of the Members of Congress, growing out of the issuance of 
injunctions in labor disputes. 

Mr. Howland. It is not intended to cover that at all. 

Mr. Wilson. It is intended, as I understand it, to cover the con¬ 
tempts growing out of that, and out of all other matters arising in the 
courts. 

Mr. Howland. But it is not intended at all to cover the injunc¬ 
tion legislation. 

The Chairman. No; this does not relate to injunctions. 

Mr. Howland. Except indirectly. 

Mr. Wilson. I understand, Mr. Chairman, that, so far as this bill 
itself is concerned, it has no relation to the issuance of injunctions, 
except in so far as contempt proceedings in some cases grow out of 
the issuance of injunctions. In so far as contempt proceedings grow 
out of the issuance of injunctions, it has a relationship to those in¬ 
junctions. One amendment, which I will suggest—not specifically— 
will be to add to clause a of section 2 the words “or so near thereto as 
to obstruct the administration of justice.” That, as I understand it, is 
an exact quotation from existing law; but nevertheless it is broad, ex¬ 
ceedingly broad, and the court may with perfect propriety, in its dis¬ 
cretion, assume that any obstruction to the enforcement of any writ 
issued bv the court is an obstruction to the administration of justice, 
and if that construction is placed upon the language by the court, then 
the purpose of this bill, in so far as it divides contempts into two classes, 
would not be accomplished. "While I have not been able, in my own 
mind, to draft language that would obviate that condition, it seems 
to me that the committee should take that phase of the situation 
into careful consideration. 

The other point that I have in mind as requiring amendment is in 
the last sentence in section 4, where it says. “If the accused shall be 
found guilty, judgment shall be entered accordingly, prescribing the 
punishment .” If these cases of direct contempt are to be treated in 
the same manner as criminal cases, then there is no reason why there 
should not be a limitation upon the powers of the court to inflict pun¬ 
ishment, and, in my judgment, those things that can be enacted into 
lav giving specific direction to the court as to what it should do should 
be enacted into law. 

During the past twelve hundred years, or since the peace of Wed- 
more was signed between Guthrum the Dane and Alfred the Great, 


56 


CONTEMPTS OF COURT. 


there has been a continual conflict between two distinct forms of gov¬ 
ernment and administration of government, between that form of 
government which is a government bv law and that form of govern¬ 
ment which is a government by the discretion of one man vested with 
the power of exercising that discretion, and during all the years inter¬ 
vening between the signing of that peace and the signing of the Dec¬ 
laration of Independence there had been a continual contest in Great 
Britain, from which we derive to a great, extent our judicial procedure. 
There had been a continual conflict between those two forms of gov¬ 
ernment, the idea of government by law gradually-encroaching upon 
the idea of government b\ discretion, the powers of the courts, derived 
from the power of the king originally, being continually restricted and 
defined by law. So that when the Declaration of Independence was 
signed and when our Constitution was adopted the powers of the 
chancery courts of Great Britain had been very much restricted from 
what they had been before. The chancery courts at that time had 
no jurisdiction except where property and property rights were 
involved. 

It can not be said, no matter what construction you may place 
upon the Constitution, that our courts, from the Supreme Court 
down, could have secured any greater power in equity than that which 
existed in the chancery courts of Great Britain at the time that our 
Constitution was adopted. I doubt even it they were given as much 
powder as the chancery courts had, because if I recall the Constitution 
distinctly it provides that our judicial power shall have jurisdiction 
of all cases in law and equity arising under the Constitution and laws 
and then a number of other specific grants of power. It is the power 
in equity arising under the Constitution and laws wdiich is granted to 
the Supreme Court and the other courts, and no greater power than 
that could be given to our courts of chancery or courts of equity. 
Yet there has been, during the period of our existence as an inde¬ 
pendent government, a gradual assumption of power on the part of 
our courts under the plea that the courts have inherent powers and 
that they have the right to exercise those inherent powders. I con¬ 
tend that our courts have no inherent powders; that the only powers 
wdiich our courts have are the pow r ers which are granted to them by 
the Constitution and by our laws, and that all other pow r ers exercised 
by our courts are usurpations of authority. I can realize that where 
the court believes that such powers are implied in order to carry out 
the pow-ers-that are specifically granted will exercise its discretion in 
the use of those implied powers wdiere there is no law to the contrary. 
But when the question arises in the legislative branch of the Govern¬ 
ment as to how r far those implied powers can be carried by the courts 
of our country, then the legislative branch of the Government has, or 
at least should have, the power to determine wdiether or not the 
construction of the court relative to its implied powers is correct or 
incorrect and to define the limitations of those implied powers. 

This bill proposes to limit some of those powers which the courts 
assume are implied, or, rather, which they have assumed are inherent, 
and which are not inherent. The only reason which I can give why 
the courts should assume to go beyond the jurisdiction of property 
rights in the issuance of injunctions, or contempt proceedings growing 
out of those injunctions, is upon the assumption that one man has a 
property right in another man. That might have been the case, and 


CONTEMPTS OE COURT. 


57 


undoubtedly was the ease, in many instances, prior to the adoption of 
the thirteenth amendment. But since the adoption of the thirteenth 
amendment it can not be said that one man has a property right in 
another man, and when a court assumes to issue an injunction saying 
to me that I must not induce you to leave the employment of another 
man, it assumes, if it does not go beyond the rights to exercise its 
power where property and property rights alone are involved, that 
the other man has a property right in you, and only upon that basis 
can there be an injunction of that character issued, and contempt 
proceedings growing out of it. 

Mv contention is that the courts have gone beyond the powers 
granted to them by the Constitution, and beyond the powers which 
can even be claimed by the court, on the part of those who assume 
that it has inherent powers, when it assumes to issue an injunction of 
that character; and, further, when it assumes to issue an injunction 
restraining me from associating with somebody else in refusing to 

E urchase an article made by another party, or, in otner words, to 
oycott, because our courts, following precedents laid down from the 
time when men were serfs, have assumed that patronage and good 
will in business are property or property rights. 

Patronage and good will in business, if they are property at all, are 
the property of the persons who have the patronage and the good will 
to bestow, and I can conceive of no other wav in which the idea of 
patronage and good will in property has grown up in the minds of our 
judiciary than through the fact that when some one purchases the 
business of some one else that has been established, and purchases the 
good will of the seller with it. they have gradually come to the con¬ 
clusion that there is more than his good will which has been purchased, 
that there is also purchased the good will of his customers, which, 
as a matter of course, can not be, because he lias no power to 
sell their good will: but by selling his business he sells the opportunity 
of coming in contact with these individuals, thereby retaining the 
good will. But the good will itself and the patronage in business— 
and I want to reiterate this statement—the patronage in business and 
the good will itself, if property, are the property of the man who has 
the patronage and the good will to bestow, and not of the man who is 
receiving the benefits of that patronage and good will. So that in 
both of those instances the courts, in my judgment, exceed the 
constitutional pow r ers granted to them, and may be prevented from 
exceeding those powers by the enactment of legislation on the part of 
Congress. 

One of the reasons why we believe that this measure in itself , while 
a step in the right direction—a step away from autocracy toward 
democracy, a step from the condition of discretion on the part of one 
man as to the administration of justice to a more democratic form of 
administering it—will not give the relief in its entirety that we believe 
the people are entitled to, is this: That when a citation to show cause 
why they should not be held in contempt is heard before the court, 
and a trial bv jury is secured, the question as to whether the court, 
in issuing the injunction or restraining orders, or other cause upon 
which contempt proceedings are based, had exceeded its authority, 
will not be before the jury to determine. 

The sole thing that will be before the jury to determine will be the 
question of fact, as to whether or not the order of the court has been 


58 


CONTEMPTS OF COURT. 


disobeyed .and the question of whether or not the court exceeded its 
jurisdiction in issuing that order will not be before the courts. I 
have in mind as an instance an injunction issued in Judge Dayton’s 
court, in the northern district of western Virginia, at the instance of 
the Hitchman Coal & Coke Co. against John Mitchell and others, 
where there was no strike on, had been no strike on, no trade dispute 
of any kind in existence, and yet the Hitchman Coal & Coke Co. 
secured an injunction restraining John Mitchell and others associated 
with him from inducing the men employed by the Hitchman Coal & 
Coke Co. or others who might seek to become employees of the Hitch¬ 
man Coal & Coke Co. from joining the United Mine Workers of 
America. 

Mr. Davis. Are you not in error in saying there was no trade dis¬ 
pute on at the time ? 

Mr. Wilson. No; I am not in error about that. But there was 
this: Two or three years prior to that time there had been a trade 
dispute on and there were some activities on the part of the organizers 
in that neighborhood in a hope of reorganizing those workmen, and 
the fear, apparently, on the part of the Hitchman Coal & Coke Co. 
was that, as a result of those activities, the men would be organized, 
and that then, after they were organized, a trade dispute would arise. 

Mr. Davis. I was under the impression that there was a strike; 
local in character, not general. 

Mr. Wilson. No; there was no local strike. I happened to be 
familiar with that particular situation and there was no local strike 
at that time. There had been at some time prior to that time a 
local strike, but that local strike had ended, and in the ending of the 
local strike the local organization of the mine workers had gone out 
of existence, and an effort was being made to reorganize the workers 
into a local union of the mine workers when this injunction was 
issued in Judge Dayton’s court. 

Mr. Howland. Was not that a temporary restraining order? It 
was not a permanent injunction? 

Mr. Wilson. No; but it was continued and continued and con¬ 
tinued, and, so far as I know, is still continued as a temporary order. 

Mr. Howland. By consent of counsel on both sides ? 

Mr. Wilson. By consent of counsel on both sides; on the ground 
that service of the papers in the temporary restraining order had 
not been secured upon Mr. Mitchell and one or two others who are 
specifically named in the bill. 

Mr. Davis. I am under the impression—I may be wrong, but I 
think I am right—that the injunction has been made perpetual 
nemine contradicente. 

Mr. Wilson. I do not remember of its having been made per¬ 
petual; it may have been. But I know it was issued in 1907 , and 
that it was continued for several years after that time in its temporary 
form on the ground that service of the papers had not been secured 
upon Mr. Mitchell and others who were named in the bill, and that it 
was continued in that form. However, the point I want to bring 
to the attention of the committee is this, that in the event of con¬ 
tempt proceedings growing out of an injunction of that kind, proceed¬ 
ings under this measure, if it were enacted into law, the question of the 
right of the court to issue a restraining order of this character would 
not be involved in the hearing. The only question for the jurv to 


CONTEMPTS OF COURT. 


59 


determine would be the question of whether or not the parties who 
were being tried for contempt had been guilty of violating the order. 
I think it is Getty who says that the greatest element of terror is 
the unknown, and one of the reasons why these injunctions have 
been of so great an injury to the wageworkers of the country has 
been because of the fact that the injunction is a law unto itself, and 
it is seldom the case that the court issuing the injunction knows at 
the time it issues it what interpretation he will place upon it in the 
event of contempt proceeding following, and those against whom the 
injuction is issued are not in a position to determine what construc¬ 
tion will be placed upon it. They can not determine from the injunc¬ 
tion itself what their rights are under the injunction, and hence the 
terror that follows in connection with it. 

We believe that the enactment of this measure will give some 
relief, not only in those cases but in other cases generally. Yester¬ 
day the question of remedial contempt was referred to and the inti¬ 
mation thrown out that there ought to be trial by jury in cases 
involving the liberty of the citizen, but that in cases involving the 
property of the citizen it was doubtful whether a jury trial should 
obtain. In my judgment no one man should have the power to 
either imprison another man or take his property except upon the 
judgment of his peers, and the only exception I would make to that 
condition would be where the persons being held for contempt were 
engaged in obstructing the court in its operations so that it could 
not proceed with the administration of justice. 

Those are the few points which I have to make in connection with 
this measure, that it is a step in the direction of democracy and 
away from autocracy; that it is a step toward government by law 
and away from government by the discretion of any one man; and 
the nearer we get toward the point of government by law and away 
from government by the discretion of &ny one man, the better it will 
be for all of our people. 

Mr. Norris. Mr. Wilson, I came in after you had started. Did 
you suggest some amendments to this measure ? 

Mr. Wilson. Yes; not specifically, but I simply pointed out 
where, in my judgment, the bill could be strengthened; but that, in 
the event of the inability of the committee to see its way clear to 
amend in accordance with my suggestions, nevertheless I would be 
in favor of the bill as being a step in the right direction. Those 
points were in sections 2 and 4; that point of the bill where it quotes 
existing law. 

Mr. Norris. I will not ask you to repeat it if it is already in. 

Mr. Graham. Mr. Wilson, you found some fault with the conclud¬ 
ing line of paragraph a of section 2 ? 

Mr. Wilson. Yes. 

Mr. Graham. Have you given us as specific information as you 
have on that? Have you any suggestion of a definite character to 

make ? . 

Mr. Wilson. I have not, because I have not been able m the 
time I have devoted to it to devise language that would overcome 
the difficulty. But the difficulty is there, nevertheless, that the 
courts may, with perfect propriety, put a very wide construction 
upon that "clause of section 2 so as to destroy the effect of this meas¬ 
ure as it applies to indirect contempts. 


60 


CONTEMPTS OF COURT. 


STATEMENT OF HON. N. E. KENDALL, A REPRESENTATIVE IN 
CONGRESS FROM THE STATE OF IOWA. 

The Chairman. We will hear Mr. Kendall. 

Mr. Kendall. Mr. Chairman, I want to submit an observation or 
two to the committee with reference to what I believe to be the neces¬ 
sity of imposing some limitation upon the power of the chancellor to 
issue injunctions. I recognize that that question is not now involved 
in this bill, and I hope to have an opportunity to develop my views 
on that subject before the committee at some other time. 

Mr. Henry. Mr. Kendall, I have a bill pending on that very ques¬ 
tion that I intend to ask the committee to take up later. 

Mr. Kendall. I like my bill a little better than yours; but I 
sympathize with the purpose you have in view. 

With reference to this bill I am very anxious to be heard briefly 
before the committee in support of the principle that is involved in it. 
I think the fundamental principle involved here is the establishment 
of the right of the trial by jury where the defendant is alleged to be 
in contempt; but I regret that I can not be heard this morning, because 
I am compelled to retire from the meeting now to attend the meeting 
of the Iowa delegation. I want to ask the indulgence of the com¬ 
mittee for about 10 minutes before any decision is arrived at on the 
subject, and I will accommodate myself to any regulation the com¬ 
mittee may make with reference to that. 

The Chairman. Will it be convenient for you to come back to¬ 
morrow ? 

Mr. Kendall. I think so. I suppose it would be perfectly proper, 
while I want to keep within the limits of this bill, to consider at some 
length the practice of courts now with reference to proceeding in 
contempts. Mr. Ralston has, in the remarks he submitted to the 
committee, developed a very interesting situation here in the District 
of Columbia, with reference to the method adopted by the court to 
ascertain whether a rule ought to be ordered against Gompers, 
Mitchell, and Morrison. It appears from what he said that the court 
who had had jurisdiction of the entire controversy between the Bucks 
Stove & Range Co. and Mr. Gompers and his associates, had made 
a finding which had been reversed by the Supreme Court, as I under¬ 
stand it, and after the entire issue had been remanded to him for 
further consideration, being in doubt whether any contempt had 
been committed, delegated to the attorneys who represented the 
Bucks Stove & Range Co. people the authority to institute the inves¬ 
tigation and report to the court whether any contempt had in fact 
been intended; and I think that is so unique it ought to be considered 
by this committee, and I want to make a remark or two on that if I 
get to it. I will try to come back to-morrow. 

(Thereupon, at 11.10 o’clock a. m., the committee proceeded to 
other business.) 


CONTEMPTS OF COURT. 


61 


Saturday, December 9, 1911. 

Pursuant to adjournment, the committee met at 10.30 o’clock 
a. m., Hon. Henry D. Clayton, chairman, presiding. 

STATEMENT OF MR. JAMES A. EMERY. 

The Chairman. Mr. Emery, if you are ready, we will hear you 
now. 

Please give your name and address to the reporter. 

Mr. Emery. My name is James A. Emery; I am general counsel 
of the National Association of Manufacturers; my local address is 
Union Trust Building, Washington, D. C. 

The Chairman. You may proceed with your statement, Mr. 
Emery. 

Mr. Emery. Mr. Chairman and gentlemen of the committee, I 
appear before this committee in opposition to this measure in a rep¬ 
resentative capacity as general counsel of the National Association 
of Manufacturers, and representing also a large number of commercial 
and industrial organizations in various parts of the United States, a 
list of which I will hie with the chairman of the committee, number¬ 
ing in their membership approximately 100,000 men engaged in vari¬ 
ous forms of business, productive and commercial, throughout the 
United States. 

They are intensely interested, not only in what they conceive to 
be the effect of the principles which underlie this bill, but the prac¬ 
tical consequences that would follow the limitations it would impose 
upon the powers of courts of the United States and the revolutionary 
change it proposes in the time-honored procedure by which they give 
effect to their orders and decrees. 

I am sure this committee recognizes that two very important ques¬ 
tions necessarily present themselves in considering a measure of this 
character, the first and most important of which is the power of the 
Congress to curtail and, as we conceive it, impair and destroy, under 
the guise of regulating, the power now possessed by inferior courts 
of the United States to exclusively investigate and punish contempts 
of their authority. 

I assume, Mr. Chairman, that tills committee and every member 
of Congress would dispose of the question of the power to enact it 
before considering the policy or expediency of this proposal, for I 
may safely suppose that the novelty and unprecedented character of 
this bill would suggest that primary duty so well expressed by Cooley 
in his Principles of Constitutional Law: 

Legislators have their authority measured by the Constitution; they are chosen 
to do what it permits, and nothing more, and they take solemn oath to obey and 
support it. When they disregard its provisions, they usurp authority, abuse their 
trust, and violate the promise they have confirmed by an oath. To pass an act when 
they are in doubt whether it does not violate the Constitution is to treat as of no force 
the most imperative obligations any person can assume. A business agent who would 
deal in that manner with his principal’s business would be treated as untrustworthy. 
A witness in court who would treat his oath thus lightly, and affirm things concern¬ 
ing which he was in doubt, would be held a criminal. Indeed, it is because the 
legislature has applied the judgment of its members to the question of its authority 
to pass the proposed law, and has only passed it after being satisfied of the authority, 
that the judiciary waive their own doubts and give it their support. 

Mr. Sterling. What is that from? 

Mr. Emery. Cooley’s Principles of Constitutional Law, page 160. 


62 


CONTEMPTS OF COURT. 


I proceed, therefore, with your indulgence, to discuss, first, the 
power of the legislative branch to place the restrictions here suggested 
upon, the inferior courts of the United States. 

Let me give my attention, at the outset, to the assertion made by 
the distinguished gentlemen from Kentucky, that the Supreme and 
inferior courts of the United States possess no powers but those 
which Congress confers upon them, for if that be true, then, indeed, 
Congress, having made them as truly as God made Adam from the 
dust of Eden, is their creator and master, and may abolish them or 
so limit the exercise of their power as in its judgment seems wise, 
and is responsible only politically to the constituency which elects it. 

But it is a matter of elementary knowledge that this Government 
is divided into three separate, distinct, and coordinate branches, 
each exclusive within the sphere of its own action, each forbidden 
to exercise or trespass upon the powers of the other two, and all 
deriving their existence and authority from the Constitution. 

The Constitution provides that the judicial power of the United 
States shall be vested in one supreme court and in such inferior courts 
as Congress may from time to time ordain and establish. (Art. Ill, 
sec. 1, of the Constitution.) 

What is the extent of judicial power here conferred, Mr. Chairman ? 
This is immediately answered by the second section of Article III: 

The judicial power shall extend to all cases in law and equity arising under this Con¬ 
stitution, the laws of the United States, etc. 

The section then proceeds to define the various characters of con¬ 
troversies to which it shall apply. 

In the same section not only is judicial power conferred, but original 
jurisdiction, as distinguished from that power, is given to the Supreme 
Court of the United States in two instances, and in two alone—in 
cases affecting ambassadors, consuls, and other public officers, and in 
controversies to which a State is a party. 

Appellate jurisdiction is thereafter given to the Supreme Court of 
the United States, subject to congressional regulation. 

But, sirs, the original jurisdiction -of the Supreme Court of the 
United States can not be enlarged by Congress, nor can it be dimin¬ 
ished. That has been repeatedly decided, as you well know. 

Where, then, is the remaining judicial power of the United States 
that deals with controversies that do not affect public officers or to 
which States are not a party, that great body of controversies winch 
arise from day to day and in all parts of the Nation between citizens 
of the United States who, unless they can be effectively protected, 
do not enjo} 7 - those rights of life and property the organic instrument 
of Government was designed to secure and maintain. 

Where, then, is the remaining judicial power of the United 
States? There is but one series of tribunals in which it can be 
vested under the Constitution of the United States, and that is the 
inferior courts of the United States which Congress shall ordain and 
establish. The quality of the power conferred upon the Supreme 
and inferior courts must be identical for it proceeds from the same 
instrument, is expressed in the same language, is given at the same 
time, and devolves upon these courts for the same purpose. In con¬ 
troversies between citizens of the United States, the matters at issue 
are no less Important than those of which the Supreme Court of the 
United States is given original jurisdiction. But unless these inferior 
tribunals were brought into existence, there would be no complete 


contempts of court. 


63 


and practical instrumentality to “establish justice” as contem¬ 
plated in the Constitution for there would be no courts to whom 
citizens of the United States could carry their justiciable contro¬ 
versies. 

The same duty devolves upon Congress to establish and ordain these 
courts as to organize the Supreme Court of the United States; for, 
sirs, it can not be a matter of doubt in your minds that in so far as the 
Supreme Court of the United States itself is an effective instrumen¬ 
tality to administer justice, it was established by the Congress of the 
United States. They numbered its judges, and they can to-day 
number its judges. They alone have provided it with a system of 
appeals by which suitors may reach its doors. They have left to it 
the method by which it shall enforce its orders and administer its 
decrees, but they have supplied it with all its machinery, the place in 
which it shall sit, and all those things which give it practical existence 
as a court. Therefore, in the sense of the word that they gave it prac¬ 
tical being, they brought the Supreme Court into existence in the same 
manner that they gave form and substance to inferior courts of the 
United States. 

But, sirs, was it within the discretion of the Congress to leave the 
judicial powers of the United States without a receptacle? Could 
Congress have refused to create a Supreme Court or inferior Federal 
tribunals? In the sense of the word that there is and was no man¬ 
datory power in law that could compel Congress to bring these courts 
into existence, and that they could not, ex proprio vigore, have come 
into existence themselves, they might have remained in the limbo 
of nothingness. But that a duty created by the Constitution and 
recognized by Congress rested upon that body to give effective 
expression to the Constitution itself and to create the receptacles in 
which the Constitution would vest the judicial power there can be 
no doubt. That was decided at a very early period in the history of 
our Government, for there were those who then contended that the 
term “may be vested” with reference to the judicial power, or at 
least with respect to the constitution of the Supreme Court and the 
inferior Federal tribunals, was simply an expression of discretion, 
in the future tense—that it did not imply a present obligation and 
duty. 

In the case of Martin v. Hunter (1 Wheat., 304), commented on 
extensively by Story in his famous work on the Constitution, that 
very issue, you will remember, was raised, and the question whether 
Congress possessed any discretion as to the creation of the Supreme 
Court and the inferior courts in which the judicial power would be 
vested was answered. 

Mr. Story commented upon that decision, in which it was held no 
such discretion vested, and that the word “may” so used was to be 
construed as “shall,” thus placing upon Congress a very important 
duty. He said “it is obvious” that if Congress possessed any “dis¬ 
cretion” in the matter— 

The judiciary as a coordinate department of the Government may at the will of 
Congress be annihilated or stripped of all its important jurisdiction; for, if the discretion 
exists, no one can say in what manner or at what time or under what circumstances it 
may or ought to be exercised. 

This of course must conclusively meet the argument that “shall be 
vested” was not imperative, but merely applied to the future tense. 


64 


CONTEMPTS OE COURT. 


Then, sirs, to the question where does the judicial power of the 
United States reside as a separate, distinct, and coordinate branch 
of this Government, there can be but one answer—in the courts of 
the United States, in those courts in which is vested the judicial 
power flowing from the Constitution—one Supreme Court, and such 
inferior courts as Congress shall ordain and establish. 

At a very early period in our Government, the Supreme Court of 
the United States recognized the difference between constitutional 
courts, deriving their authority and powers from the Constitution, 
and legislative courts, deriving their authority and powers from the 
legislature alone. 

That differentiation between constitutional courts and legislative 
courts was established by Mr. Justice Marshall himself in the famous 
decision in the case of American Insurance Company v. Canter (1 Pe¬ 
ters, 511), where he was called upon to distinguish between the 
powers of a legislative court created for the Territory of Florida and 
a district court of the United States. 

'Speaking of these territorial courts, Justice Marshall said: 

These courts, then, are not constitutional courts in which the judicial power con¬ 
ferred by the Constitution on the General Government can be deposited. They are 
incapable of receiving it. The jurisdiction with which they are invested is not a part 
of that judicial power which is defined in the third article of the Constitution, but 
is conferred by Congress in the execution of those general powers which that body 
possesses over the Territories of the United States. 

Or, as he said, under the general power of sovereignty incidental to 
the government of territory owned by the United States. 

So that at that very early period in our history an essential difference 
was recognized between the courts of the United States, supreme and 
inferior, as constitutional courts deriving their authority from the 
Constitution of the United States, and the sole receptacles of its 
judicial power, and the courts of the Federal territories deriving their 
authority from the legislative power of Congress alone. 

Mr. Dodds. Are the inferior courts referred to in the Constitution 
constitutional courts or legislative courts? 

Mr. Emery. They 7 are constitutional courts. 

Mr. Henry’. Will the gentleman allow me to ask a question ? 

Mr. Emery. Certainly, Mr. Hemy. 

Mr. Henry. What power creates the police court of the District of 
Columbia ? 

Mr. Emery’. It is created by’ Congress. 

Mr. Henryy What powers have those police courts? 

Mr. Emery. I am not familiar with the organic act of the District 
of Columbia. 

Mr. Henry. They are constitutional courts, are they not ? 

Mr. Emery’. 1 think not. 

Mr. Henry. Would they have the same judicial power these other 
inferior constitutional courts have, of which y’ou speak ? 

Mr. Emery. They are not constitutional courts—that is, the police 
court—within the meaning of the Constitution, Article III, section 1. 

Mr. Henry’. Why not? Are they’ not created under that article? 

Ur. Emery. I do not understand they are. They are created 
under the power to provide for the government of the District of 
Columbia. I will not discuss that question, however, because I am 
not familiar with the particular court mentioned, and it is evidently 
of no consequence to the argument I am making what the character 
of that particular court may be. I do say the" circuit and district 


CONTEMPTS OF COURT. 


65 


courts of the United States are courts of that character, and so 
recognized by the Supreme Court of the United States. 

Mr. Henry. If they are inferior courts under that provision of 
the Constitution, then your argument would necessarily lead to the 
proposition that they have the same judicial power these other 
inferior courts have ? 

\ r. Emery. If they were inferior courts within the meaning of that 
article, that would be true. 

Mr. Henry. And Congress w T Quld have no right to circumscribe 
their jurisdiction? 

Mr. Emery. I do not say that. 

Mr. Henry. Any more than it would the jurisdiction of other 
inferior courts ? 

Mr. Emery. I have not contended that Congress has not the right 
to circumscribe the jurisdiction of inferior Federal courts. I am 
considering whence the judicial power, as distinguished from juris¬ 
diction, is derived, and its nature. 

• Mr. Henry. You would take the position Congress would have no 
right to take that judicial power away from them? 

IV r. Emery. I am not going to answer that question with respect to 
a court of whose constitution I have no knowledge. I answer it with 
respect to circuit and district courts of the United States. 

Mr. Henry. 1 would like to see you draw the distinction there. 

Mr. Davis. Has not Congress, by the present judicial code, with- 
draw r n all judicial power from the circuit court? 

Mr. Emery. No, sir. 

Mr. Davts. By the abolition of the court Congress has taken away 
the judicial powers which it invested in the circuit court. 

Mr. Emery. Yes. It has deposited it elsewhere in a new tribunal. 
What you call the courts which you establish is of no consequence. 
Congress could have called the Supreme Court of the United States 
by any other name it pleased. Whatever it called it, it would have 
had the judicial power which flowed to one supreme court from the 
Constitution. Congress has done no more than create a receptacle 
into which that powder flowed. It did not create the power but 
merely gave form to the tribunal which exercises it. 

In a further section of the Constitution Congress is empowered to 
create certain inferior courts- 

Mr. McCoy (interposing). Suppose that Congress should determine 
to abolish all the inferior courts and to create new courts, could not 
they, in the act creating the new courts, prescribe what they please 
in regard to them ? 

Mr. Emery. You mean in regard to their power? 

Mr. McCoy. In regard to anything; yes. 

Mr. Emery. I will answer you in this way: I understand by 
“judicial power” the power to hear and to decide and to enforce a 
judgment in a justiciable proceeding. 

Y our proposition must necessarily involve this, that Congress has 
at once the power to create a court and to make it something else 
than a court. 

On the negative side of that proposition it has again and again 
been held that Congress could not create a court and give it adminis¬ 
trative or legislative powers, nor compel it to perform administrative 

20502 — 11—-5 



66 


CONTEMPTS OF COURT. 


functions, nor to be the legal adviser of governmental officials. 
Those things have all been decided, respecting the right or power of 
Congress to compel the judicial branch of the Government to perform 
other than judicial functions. 

Mr. Wilson (Representative from Pennsylvania). Do you consider 
a jury as a part of the court in the definition which you have just 
given ? 

Mr. Emery. It is a part of a common-law court. It is not a part 
of a court of equity, except as an advisory body. 

Mr. Wilson. But in view of the fact that the Constitution provides 
that the powers of the court shall extend to all cases in law and in 
equity arising under the Constitution and laws, would you not thereby 
consider that a jury is a part of the court if the law creates a jury ? 

Mr. Emery. 1 should answer that in the language of the Supreme 
Court of the United States, which has frequently answered the 
question, and if the gentleman will permit me I will reach that just a 
little later in my discussion. I have outlined in my mind the order 
in which I desire to present my argument, and this proposition is 
injected just now where it does not properly belong. 

Mr. Littleton. May I ask a question just at this point? 

Mr. Emery. Certainly, Mr. Littleton. 

Mr. Littleton. Is it not true that the constitutional provision 
regarding the judicial power of the court was made for the purpose 
chiefly of declaring that you should never attempt to vest these 
courts with other than judicial power, that it was not for the purpose 
of saying Congress might not confer or withhold certain powers and 
certain governing features of its procedure, but rather to differen¬ 
tiate between executive and legislative and judicial functions, and 
for the purpose of making it for all time impossible for Congress to 
confer executive or administrative functions upon courts as courts? 

Mr. Emery. I believe that is one of the many reasons advanced 
both in the constitutional debates and in the Federalist and in the 
correspondence of the distinguished men to whom our Constitution 
owes its being. 

Of course, there existed at the time of the adoption of the Con¬ 
stitution a recognition of three separate and distinct branches of 
government in the constitutions of several of the original States. 
This is commented on in the Federalist and a list of eight States, I 
believe, given, in which that distinction was recognized. That sec¬ 
tion was likewise intended, as is evidenced both from letters and 
speeches of Madison and Jay and Jefferson, to preserve the inde¬ 
pendence of the judiciary which, in the course of the English history, 
had many times suffered trespass from the King. 

Mr. Littleton. Does it not say in the Constitution that all judicial 
power shall be vested in a supreme court and inferior courts ? 

Mr. Emery. Yes, sir. 

Mr. Littleton. Is not the emphasis of that proposition to be laid 
upon the fact that all judicial power, whether little or much, is con¬ 
ferred upon the courts, and it must be all the judicial power? 

Mr. Emery. Surely. 

Mr. Littleton. It must not be legislative power, or executive 
power, or administrative power; and is not the emphasis to be placed 
on the fact that if Congress gives much or little power to these courts, 
prescribes them narrowly or gives them broad jurisdiction, it must 


CONTEMPTS OF COUPtT. 67 

always preserve the judicial power in that branch of the Government, 
and is not that the philosophy of that section ? 

Mr. Emery. The philosophy, as you have so well expressed it, is, 
as I understand it, that and something more. There is recognized 
in the Government of the United States a power distinct from the 
legislative and the executive, which is the judicial power. That judi¬ 
cial power was not defined. But the phrase denoted something well 
recognized and established—— 

Mr. Henry (interposing). Will the gentleman allow me to inter¬ 
rupt ? 

Mr. Emery. Pardon me just a moment, please, Mr. Henry. 

As the supreme court of Indiana has well said that the judicial 
power has no home but in the courts; and it was the purpose, as I 
understand it, of the Constitution to see that that power, whether 
little or great, had a secure home in the courts. If that judicial 
power means something, just as legislative power means something 
and executive power means something, that thing vested by the 
Constitution and defined by the courts must be the power that 
belongs to the judicial branch of the Government and to be violated 
by no other. 

Mr. Littleton. That being so, does not the question really arise 
here whether Congress, having conferred upon a court a judicial 
power, has the same right to withdraw that judicial power, not con¬ 
ferring it upon any other branch of the Government, but simply 
withdrawing it, rescinding it, and so regulating it that it shall be con¬ 
ducted by the aid of a jury instead of a court? Does it destroy its 
character as a judicial power because it provides the additional 
approval of a jury to aid the court? 

Mr. Sterling. Before you answer that- 

Mr. Emery (interposing). Pardon me; let me answer that first. 

May I say, Mr. Littleton, that to answer that question compels me 
to assume something I deny to be a principle or fact, and I will 
answer that question a little further along in my argument, because 
I am now virtually laying a foundation. I want to show there are 
certain essential elements included in the judicial power, and then I 
will directly answer your question. 

Mr. Littleton. I hope you will pardon me for interposing the 
question. I hardly think it fair to interrupt you in this way, I must 
admit. 

Mr. Emery. Your question involves a very substantial feature of 
my argument, and I should have to proceed disjointed^ rather than 
consecutively if I undertook to consider it now. 

Mr. Sterling. I do not know whether you confuse jurisdiction 
with power or not. Do you contend there is a distinction ? 

Mr. Emery. I insist upon a very marked distinction. 

Mr. Sterling. Does Congress confer judicial power? Does Con¬ 
gress do that ? 

Mr. Emery. It does not. 

Mr. Sterling. Does it not just fix the jurisdiction? 

Mr. Emery. That is all, as I conceive it. 

Mr. Sterling. And Congress may go further, not only fixing the 
jurisdiction of the court, but may prescribe the methods of pro¬ 
cedure; but does it confer any judicial power on a court now? 




68 


CONTEMPTS OF COURT. 


Mr. Emery. To say that Congress, by abolishing a court, abolishes 
the judicial power, is to my mind like saying because a man destroys 
a barrel that holds water he destroys the water. He has abolished 
the receptacle, but the contents of it remain in existence somewhere, 
and if all the courts were abolished the judicial power would merely 
remain dormant in the Constitution, ready to flow into any consti¬ 
tutional receptacle. 

Mr. Henry. I do not want to disturb the line of your argument, 
but I consider that a very important point made by Mr. Littleton, 
and I would like to make this suggestion: 

In the very first article of the Constitution it is said: 

All legislative power herein granted shall be vested in Congress. 

It uses the expression “legislative power.’’ The second article 
says: 

The executive power shall be vested in the President of the United States of 
America. 

Then the third article says: 

The judicial power of the United States shall be vested in a Supreme Court and 
inferior courts. 

So it uses identically the same expression—first, legislative, then 
executive, and then judicial powers; so I think for that reason the 
proposition made by Mr. Littleton is very important in considering 
the point you are discussing now. 

Mr. Emery. You call my attention to it, but I do not quite catch 
the connection between your suggestion and Mr. Littleton’s ques¬ 
tion. 

Mr. Henry. The suggestion is that the phrase is identically the 
same. As I understand your argument, you w r ere making the point 
that whenever the judicial power is once vested in a court, it carries 
with it all judicial power, as I understood, when the Constitution was 
adopted, being possessed by the courts, and could not be limited in 
any way. 

Mr. Emery. The gentleman is not confusing—pardon me for using 
the term—jurisdiction and judicial power? 

Mr. Henry. No, not at all. 

Mr. Emery. My proposition is not that Congress can not abolish the 
courts- 

Mr. Henry (interposing). I understand that. 

Mr. Emery (continuing). Which it has ordained and established. 
My proposition is that not Congress but the Constitution vests in 
the inferior courts of the United States the judicial power which they 
exercise. It flows directly from that section of the Constitution 
creating the judicial power and not from the Congress which estab¬ 
lishes the tribunal in which it is exercised. 

The Chairman. Right in that connection, you say the power flows 
directly from the Constitution to the courts. Can not Congress pre¬ 
scribe the amount of power that shall flow ? Can not Congress limit 
the power that shall flow ? 

Mr. Emery. Undoubtedly, by the very manner in which it pro¬ 
vides the procedure. 

The Chairman. Do you mean to say that all the power that a court 
might possibly have under the Constitution, when the act of Con¬ 
gress calls that court into being, by the very act creating the court, that 



CONTEMPTS OF COURT. 69 

all constitutional powers flow into the court and it is not within the 
power of Congress to restrict the power that flows into the court ? 

Mr. Emery. No, sir. I recognize fully the regulative power of 
Congress, but when that regulative power reaches a point where it 
impairs or destroys an essential judicial function it has passed the 
limit of its authority; and the legislative power trespasses upon the 
judicial power and mutilates its essential features conferred by the 
Constitution. 

The Chairman. Congress has created a Court of Customs Appeals, 
and it has limited the powers of that court. Congress has created a 
Commerce Court, and it has limited the powers of that court. You 
do not contend, do you, that Congress in creating a court can not 
limit the powers of that court which they create ? 

Mr. Emery. The Court of Customs Appeals, like the Court of 
Claims- 

The Chairman (interposing). I am not referring to the question of 
jurisdiction. I am inquiring with reference to the matter of power. 

Mr. Emery. It can undoubtedly limit the things to which the court 
shall apply its power, the space within which it shall apply it, and the 
time (luring which it shall apply it. But I say that the essence of 
judicial power can not be taken from a court by Congress where Con¬ 
gress has given it jurisdiction; that with reference to whatever it has 
been given jurisdiction by- an act of Congress the judicial power 
applied can not be impaired by Congress. I mean by that the power 
to hear and decide and enforce its decrees. 

I can not, for instance, conceive any court of any kind that Congress 
could create, which, after it had been given jurisdiction of the subject 
matter, could by statute be told how it should decide its cases. 

Mr. Norris. Suppose you grant to an inferior court the right to 
issue an injunction or restraining order; it would be within the power 
of Congress to take that right away, would it not ? There would not 
be any question about that. Suppose we create a court of equity 
which, under the power mentioned in the Constitution, would have 
the right to issue an injunction; could we provide by law that such 
a court should not issue an injunction? Would that be unconstitu¬ 
tional ? 

Mr. Emery. I am perfectly willing to answer that question, but, 
as I said with reference to another, it compels me to come at once to 
something I would like to defer until a little later. 

Mr. Norris. I will withdraw the question for the present, then. 

Mr. Dodds. Is it not your contention that the legislature has the 
right- 

Mr. Emery (interposing). The judicial power is a certain fixed 
thing. I say that power in its essence does not proceed from Con¬ 
gress, but flows from the Constitution of the United States into what 
have been defined as constitutional - courts as distinguished from 
legislative courts. 

I am anxious to be at the service of the committee to answer any 
question that arises, but unless 1 lay my foundation a little deeper, 
Mr. Chairman, I will be compelled to repeat myself; and if the chair¬ 
man will permit me to proceed a little further without interruption, 
I will be perfectly willing to answer any question the committee asks. 

The Chairman. That is a fair request, certainly. 




70 


CONTEMPTS OF COURT. 


Mr. Emery. I desire to call the attention of the committee, further¬ 
more, in the discussion of judicial power, to a great decision of the 
late Mr. Justice Brewer, which deserves consideration in connection 
with the discussion of judicial powers. It is contained in the case of 
Kansas against Colorado, 206 United States, page 31. 

The first question there discussed was whether or not the court had 
jurisdiction to hear a controversy between those two States with 
respect to the subject matter. Mr. Justice Brewer calls attention to 
the very remarkable condition respecting the grant of judicial power. 
He compares the manner in which the Constitution grants legislative 
and judicial powers and contrasts the two grants of power. It is a 
very important consideration in this very discussion. 

Mr. Justice Brewer said: 

In the Constitution are provisions in separate articles for the three great departments 
of Government—legislative, executive, and judicial. But there is this significant 
difference in the grants of powers to these departments: The first article, treating of 
legislative powers, does not make a general grant of legislative power. It reads: 

“All legislative powers herein granted shall be vested in a Congress,” etc. 

And then, in article 8, mentions and defines the legislative powers that are granted. 
By reason of the fact that there is no general grant of legislative power, it has become 
an accepted constitutional rule that this is a government of enumerated powers. 

In McCulloch v. Maryland (4 Wheat., 405, 4 L. Ed., 601) Chief Justice Marshall said: 

“ This Government is acknowledged by all to be one of enumerated powers. The 
principle that it can exercise only the powers granted to it would seem too apparent 
to have required to be enforced by all those arguments which its enlightened friends, 
while it was depending before the people, found it necessary to urge. That principle 
is now universally admitted.” 

On the other hand, in Article 3, which treats of the judicial department—and this 
is important for our present consideration—we find that section 1 reads that “the 
judicial power of the United States shall be vested in one Supreme Court and in such 
inferior courts as the Congress may from time to time ordain and establish.” By this 
is granted the entire judicial power of the nation. . Section 2, which provides that 
“the judicial power shall extend to all cases, in law and equity, arising under this 
Constitution, the laws of the United States,” etc., is not a limitation nor an enumera¬ 
tion. It is a definite declaration—a provision that the judicial power shall extend 
to—that is, shall include—the several matters particularly mentioned, leaving unre¬ 
stricted the general grant of the entire judicial power. There may be, of course, 
limitations on that grant of power, but, if there are any, they must be expressed, for 
otherwise the general grant would vest in the courts all the judicial power which the 
new nation was capable of exercising. Construing this article in the early case of 
Chisholm v. Georgia ( 2 Ball., 419, 1 L., ed. 440), the court held that the judicial power 
of the Supreme Court extended to a suit brought against a State by a citizen of another 
State. In announcing his opinion in the case, Mr. Justice Wilson said (p. 453, L. ed., 
p. 454): 

“This question, important in itself; will depend on others more important still, 
and may, perhaps, be ultimately resolved into one no less radical than this: Do the 
people of the United States form a nation?” 

In reference to this question attention may, however, properly be called to Hans v. 
Louisiana (134 U. S., 1, 33 L. ed, 842, 10 Sup. Ct. Rep., 504). 

The decision in Chisholm v. Georgia led to the adoption of the eleventh amendment 
to the Constitution, withdrawing from the judicial power of the United States every 
suit in law or equity commenced or prosecuted against one of the United States by 
citizens of another State or citizens or subjects of a foreign State. This amendment 
refers only to suits and actions by individuals, leaving undisturbed the jurisdiction 
over suits or actions by one State against another. As said by Chief Justice Marshall 
m Cohen v. Virginia (6 Wheat., 264, 407, 5 L. ed., 257, 291): “The amendment, there¬ 
fore, extended to suits commenced or prosecuted by individuals, but not to those 
brought by States.” See also South Dakota v. North Carolina (192 U. S., 286, 48 L. 
ed., 448, 24 Sup. Ct. Rep., 269). 

Speaking generally, it may be observed that the judicial power of a nation extends 
to all controversies justiciable in their nature, and the parties to which or the prop¬ 
erty involved in which may be reached by judicial process, and when the judicial 
power of the United States was vested in the Supreme and other courts, all the judicial 
power which the Nation was capable of exercising was vested in those tribunals; and 
unless there be some limitations expressed in the Constitution it must be held to 


CONTEMPTS OF COURT. 


71 


embrace all controversies of a justiciable nature arising within the territorial limits 
of the Nation, no matter who may be the parties thereto. This general truth is not 
inconsistent with the decisions that no suit or action can be maintained against the 
Nation in any of its courts without its consent, for they only recognize the obvious 
truth that a nation is not, without its consent, subject to the controlling action of any 
of its instrumentalities or agencies. The creature can not rule the creator. (Kawa- 
nanakoa v. Polyblank, 205 U. S., 349, ante, 834; 27 Sup. Ct. Pep., 526.) Nor is it incon¬ 
sistent with the ruling in Wisconsin v. Pelican Insurance Co. (127 U. S., 265, 32 L. 
Ed., 239; 8 Sup. Ct. Rep., 1370), that an original action can not be maintained in 
this court by one State to enforce its penal laws against a citizen of another State. 
That was no denial of the jurisdiction of the court, but a decision upon the merits of 
the claim of the State. 

These considerations lead to the proposition that when a legislative power is claimed 
for the National Government the question is whether that power is one of those granted 
by the Constitution, either in terms or by necessary implication; whereas, in respect 
to judicial functions, the question is whether-there be any limitations expressed in the 
Constitution on the general grant of national power. 

*]• Mr. Davis. Does that mean the National Government is a Govern¬ 
ment of delegated power, or does it mean- 

Mr. Emery (interposing). That means, Mr. Chairman, what Justice 
Brewer said, that the rule by which to discover whether or not a 
power exists in Congress is to ascertain whether it has been expressly 
granted or not, whereas if it is judicial power it is presumed to exist 
in the judiciary of necessity unless there is express limitation stated 
in the Constitution. This doesmot apply to the jurisdiction of the 
court, but to the power of the court as distinguished from jurisdiction. 

Mr. Wilson. Does that mean that all the powers which are not 
specifically granted are reserved to the States and the people and do 
not apply to the courts of the United States ? 

Mr. Emery. I do not see the bearing of your question, sir; but I 
think the effect of Mr. Justice Brewer’s decision is this: He simply 
says, “All the judicial power.” Not every power of the Government, 
but the judicial power of the Government, which has a certain fixed 
and definite meaning, is vested in the courts of the United States, 
except where there is limitation to the contrary expressed in the 
Constitution. 

Mr. Wilson. If I understand the construction you are endeavoring 
to place upon—— 

Mr. Emery (interposing). I will state the construction, then you 
will not misunderstand me. The only construction placed upon it is 
that the legislative power was conferred in a limited sense through 
enumerated powers upon the Congress of the United States, and to 
ascertain whether or not the Congress possesses any particular legis¬ 
lative power we must ascertain whether or not it is expressly con¬ 
ferred; but, on the other hand, if we want to ascertain whether or not 
any judicial power has been withheld from the judicial department of 
the United States we must find an express limitation in the Consti¬ 
tution. 

Mr. Wilson. That is what I understood to be your interpretation; 
but that therefore that clause of the Constitution provides that those 
powers which are not specifically named are reserved to the States and 
the people and do not apply to the courts of the United States. 

Mr. Emery. We are discussing the judicial power of the National 
Government alone. 

Mr. Wilson. That is what I am interested in. 

Mr. Emery. Of course the judicial power of the States has nothing 
to do with that consideration. 



72 


CONTEMPTS OF COURT. 


Mr. Wilson. But this is a clause in the Federal Constitution that 
I have reference to. I do not know that I am putting it exactly, but 
it provides that all powers which are not specifically granted—and 
that means granted both to the legislative, the executive, and the 
judicial powers, as I understand it—are reserved to the States and 
the people. 

Do you assume, as an interpretation of this, that that limitation is 
waived as it applies to the judicial part of the Government? 

Mr. Emery. I do not see the connection between them at all, Mr. 
Wilson, I must confess. If you will just allow me to proceed, I may 
make my meaning more clear to you as I advance. 

Mr. Nye. I understood from your argument and the logic of your 
argument that the answer to that would be that as to judicial powers 
there is nothing reserved in the Constitution to the people. 

Mi\ Emery. Not with respect to the Federal judiciary; that is all 
I am speaking of. The people granted all the judicial power of the 
National Government to be exercised through the tribunals named 
in the Constitution; and when you want to ascertain whether or not 
there is a reservation on that power you must discover the limitation; 
otherwise it is- 

Mr. Wilson (interposing). Does it not also specify that those 
powers which are granted shall extend to certain things ? 

Mr. Emery. Yes, sir. 

Mr. Wilson. And proceeds to define wliat those certain things are ? 

Mr. Emery. Yes, sir. 

Mr. Wilson. Would not that constitute a limitation? It defines 
the extent to which these powers may go or the field into which those 
powers may extend. 

Mr. McCoy. Is this inherent power a power to apply the law, or is 
it also an inherent power to find the facts in any particular way ? 

Mr. Emery. I am just approaching that proposition now, Mr. 
McCoy. 

The judicial power is understood to extend, under the Constitution 
of the United States—that is, the judicial power exercised by courts 
of the United States—to all matters in law and in equity. The Con- 
titution did not endeavor to define what it meant by matters in law 
and equity. At the time of its adoption, those terms had a meaning 
fixed from time immemorial, and when the interpreters undertook to 
say what was meant, by proceeding in law or in equity, they examined 
the meaning which had been given those terms in the common law and 
equity jurisdiction of England, and they found their answer there. 

As was said by the Supreme Court of the United States in the case 
of Pennsylvania v. Wheeling & West Virginia Bridge Co., in Thirteenth 
Howard 563, a decision by Mr. Justice McLein the powers in equity 
to be possessed by the courts of the United States are those powers 
exercised by the high court of chancery in England and this, he said, 
may be considered “the common law of chancery.” 

Again, in the case of McConehay v. Wright (121 U. S.), the same 
subject was broadly considered by the court, when it was under¬ 
taken to ascertain the test of equity jurisdiction in the Federal courts. 
The court there said: 

While the equitable jurisdiction of the national courts is derived solely from the 
United States Constitution and statutes, it is identical or equivalent in extent with 
that possessed by the English high court of chancery at the time of the revolution. 


CONTEMPTS OF COURT. 


73 


Pomeroy, volume 1, Equity Jurisprudence, section 294, says: 

The judicial functions of thQ English court of chancery are held to have been con¬ 
ferred en masse upon the national jurisdiction. 

Therefore the power in equity and at the common law possessed by 
the courts of the United States are to be defined in the terms of 
those powers as they existed in the courts of England at the time of 
the adoption of the American Constitution. The same definition 
was. recognized with respect to the exercise of the same powers by 
the colonial courts, so far as they were not expressly limited by the 
colonial charter. 

So this proposition arises: What was and what is the judicial 
power in equity and at the common law which was conferred upon 
these courts by the Constitution, since it is to them we are to look 
for this definition ? 

We need not discuss all of the powers of such courts, but we do 
want to ascertain whether or not any function or essential power 
of such courts identified by the long line of English and American 
decisions as inherent or essential or incidental to the judicial power 
itself, is destroyed or impaired by the bill here proposed. 

Mr. Webb. May I ask if section 725 of the Revised Statutes is an 
impairment ? 

Mr. Emery. I will discuss the interpretation of that statute by the 
Supreme Court in a number of decisions in just a few moments, if you 
will permit me to make this other statement first. 

Mr. Wilson. Just in this connection- 

Mr. Emery (interposing). But, Mr. Wilson, pardon me; just let me 
proceed. I am trying to finish this fundamental proposition. I am 
asked questions that lead me into a very advanced stage of my argu¬ 
ment, and I very much prefer to present it in its proper order. 

Mr. Wilson. But I desire to ask a question in connection with the 
proposition just suggested. 

If the equity powers held by the chancery courts of England at the 
time of the adoption of the Constitution were transferred by the Con¬ 
stitution to the Supreme Court, were the limitations of that chancery 
power also transferred to the Government ? 

Mr. Emery. I do not suppose you mean the Supreme Court alone ? 

Mr. Wilson. To whatever courts there are. 

Mr. Emery. I should assume they would be, except where there 
was a constitutional or valid statutory provison regulating their 
exercise. 

Mr. Wilson. Is it not a fact that one of the limitations of the 
chancery courts of England at the time of the adoption of our Consti¬ 
tution was the power of Parliament to change its jurisdiction and 
power ? 

Mr. Emery. Are you undertaking now to suggest that there was a 
transfer to the courts of the United States of legislative powei 
existing in the Parliament of England? Your question reaches 
beyond Congress. It reaches to the difference between two forms of 
government. 

Mr. Wilson. I am simply seeking to convey this point, that it 
there was transferred to the courts of the United States the power of 
the chancery courts of England, it must have been transferred at the 
* same time as the limitations of those chancery courts, and one of those 



74 


CONTEMPTS OF COURT. 


limitations was the power of Parliament to change its powers and 
jurisdiction. 

Mr. Emery. Your proposition might be true, Mr. Wilson, if the 
Constitution had said “the powers of the Supreme Court and other 
courts of the United States shall be those possessed by the chancery 
or common-law courts of England, subject to the same limitations 
which the English Parliament possessed residing in the Congress of 
the United States.” But all the Constitution can be said to mean, 
in the light of its interpretation, is that we look for the definition of 
the terms employed in the Constitution to a jurisdiction with which 
we were, familiar. 

The legislative powers of Congress are defined by the Constitution. 
They were not carried into the Constitution by reference to the legis¬ 
lature of any other country. 

Some of the powers exercised by our judiciary were utterly 
unknown to England, as you well know. It is not within the power 
of any court of England to declare a law unconstitutional or invalid. 
Parliament at once makes the laws and amends the constitution, 
because every change in the law of England is assumed to be a cor¬ 
responding change in its constitution. 

Mr. Henry. In view of what you have said about the equity 
powers of the courts, I want to ask if, in your opinion, Congress has 
the power to take away from the circuit and district courts of the 
United States the right of issuing a writ of injunction? 

Mr. Emery. Leaving them in existence, but with that right 
withdrawn ? 

Mr. Henry. Yes. 

Mr. Emery. I do not think so. 

Mr. Henry. You think, then, Congress would have no power to 
limit that right ? 

Mr. Emery. Not to limit it. There is quite a difference between 
destroying a power and regulating it. 

Mr. Henry. You do take the position that Congress can not take 
away from the circuit and district courts of the United States the 
right of issuing writs of injunction ? 

Mr. Emery. Yes; it can not take it away. 

Mr. Henry. I just wanted to raise the issue and have your opinion. 

Mr. Emery. I am sorry to simply answer you in that way. I 
should prefer to say why, but that would take too long. 

The issue raised here is whether or not, as an essential feature of 
the judicial power, there exists in the courts of the United States, not 
by virtue of any statute, but by virtue of the fact that they are 
courts exercising judicial power, an inherent right to protect them¬ 
selves and enforce their orders. I sav this is to be determined in 
the first place by reference to what was the power possessed in that 
respect by the equity or common law courts of England, and there¬ 
fore, by definition, in the courts of the United States. 

We find that Mr. Chief Justice Wilmot, one of the most distin¬ 
guished of the great English judges and common-law authorities, 
says—I am reading, if the committee please, from the Eleventh Okla¬ 
homa Reports, at page 108 , where this citation is quoted: 

The power which the courts in Westminster Hall have of vindicating their own 
authority is coeval with their first foundation and institution; it is a necessarv incident * 
to every court of justice, whether of record or not, to fine and imprison for aTontempt 
acted in the face of the court; and the issuing of attachments by the supreme court of 


CONTEMPTS OF COUET. 


75 


Justice in Westminster Hall for contempts out of court stands on the same immemorial 
usage which supports the whole fabric of the common law. It is as much the lex 
terre and within the exception of Magna Oharta as the issuing of any other legal process 
whatsoever. I have examined very carefully to see if I could find out any vestiges 
of its introduction, but can find none. It is as ancient as any part of the common law. 
There is no priority or posteriority to be found about it. It can not therefore be said 
to evade the common law. It acts in alliance and friendly conjunction with every 
other provision which the wisdom of our ancestors have established for the general 
good of society. Truth compels me to say that the mode of proceeding by attachment 
stands upon the very same foundation as trial by jury. It is a constitutional remedy 
in particular cases, and the judges in those cases are as much bound to give an activity 
to this part of the law as to any other. 

And that statement of Mr. Justice Wilmot has been again and 
again quoted with approval as the foundation of decisions by the State 
courts of the United States and by the Supreme Court of the United 
States; so it can be said to be a recognized expression of the power 
courts of equity and common-law courts have exercised from time 
immemorial, with respect to contempts committed against them. 

It is not necessary, of course, to assume that all the powers pos¬ 
sessed by the common-law and equity courts of England in the 
punishment of contempts exist in the courts of the United States by 
virtue of their exercising common-law and equity powers, because 
our Constitution has limitations and guaranties which forbid, per¬ 
haps, some of the forms of its exercise in England. 

That is referred to by Mr. Justice Scott in Neel v. State (4 English, 
263), where he said: 

It has never been contended in this country that the common law, although it is 
our birthright, and in force among us, without express recognition of our Constitution 
and laws, was ever actually enforced in all its length and breadth, but only to an 
extent that was not wholly inconsistent with these great principles upon which our 
free institutions, purely American, have been reared and maintained. 

So these doctrines which we are considering (powers of courts to punish contempts) 
in being recognized by the courts must be regarded as having received a corresponding 
abatement of those of its lineaments which are at open war with the nature and char¬ 
acter of our Constitution, and the actual state of things among us, under its legitimate 
operation, or it would be an exotic that could not germinate in our soil. 

The regulation of the court's power by legislation is thus described 
by the supreme court of West Virginia, which savs (State v. Frew & 
I art, 24 W. Va.): 

Therefore, courts will tolerate the regulation of the power, so that the legislature 
does not by such regulation substantially destroy thg efficiency of the court. 

The Chairman. Was that a case where the contempt was committed 
in the presence of the court ? 

Mr. Emery. No, sir; the contempt occurred through the publica¬ 
tion, in advance of a decision, of an article by a newspaper stating that 
three members of the court had attended a convention and agreed in 
caucus to decide the case in favor of their party, they being members 
of the party. 

Such is the foundations of the power to punish for contempt, and 
such is the recognition of its limitations in well-considered American 
decisions on that subject. 

But it has never been held anywhere, either in the Supreme Court 
of the United States or in a court of last resort of any State, that the 
right of the court to be the sole investigator of a contempt of its 
authority, committed in its presence or against its 5rder or decree, 
■whether by an officer of the court or another, could be taken away 
from it, or that that power of investigation could be transferred to 


76 


CONTEMPTS OF COURT. 


another tribunal, whether a jury or a judge, or that in the ascertain¬ 
ment of the fact as to whether or not a contempt had been committed 
a court of equity or a court of common law could be compelled to 
accept a jury’s conclusion with reference to the facts. I assert very 
positively that not only has that doctrine never been recognized by 
any court of last resort in the United States where the issue was 
squarely before it, but, on the contrary, it has been condemned repeat¬ 
edly throughout our jurisdiction, and that condemnation has followed 
overy attempt on the part of any legislature to take from the court its 
power to be the sole judge of the commission of the contempt and to 
vest it either in another judge or in a jury. Not only have State 
courts uniformly so held, but the right to trial by jury in contempt 
cases has been denied by the Supreme Court of the United States 
repeatedly, and the court has expressed wonder that anyone should 
suggest that' it was ever a part of the common law of England. 
That court has likewise decided that it was not a denial of due process 
of law to refuse a person accused of contempt a trial by jury. 

Nay, more. The Supreme Court of the United States and the 
courts of the various States have repeatedly upheld the exercise of 
the chancellor’s power to punish as a contempt in the enforcement 
of a police regulation of the State the doing of those things which 
our friend, Mr. Wilson, representing organized labor, says mean the 
trial of a man for a criminal act under the guise of enforcing an 
injunction. 

Lawyers are all familiar with those cases where, in the State of 
Iowa and other States of the Nation, it has been declared unlawful 
for a person to manufacture or sell liquor and any citizen has been 
authorized to bring an injunction suit to restrain the manufacture or 
sale of liquor on certain premises. After the issuance and disobedience 
of the order, under the power to punish for contempt the man selling 
the liquor has been attached for violating the injunction and thus 
been punished, as some might say, for selling liquor as a contempt of 
court- 

Mr. Wilson (interposing). But, Mr. Emery- 

Mr. Emery (interposing). Pardon me. The contemner was not 
punished for selling the liquor, of course; he was punished for violat¬ 
ing the injunction. But the gentlemen who say that a union man, 
for instance, is improperly^treated when he is punished for violation 
of an injunction, say that under these circumstances the man is 
deprived of the opportunity to be tried by jury in what is a criminal 
proceeding. 

In these cases all these liquor dealers in different parts of the 
United States have been punished, if you want to speak of it in terms 
of the actual offense which the law intended to prevent, for unlaw¬ 
fully selling or manufacturing liquor; but the form by which the 
State undertook to enforce its authority to declare and abate a 
public nuisance was by a proceeding in equity, and the punishment 
which was levied upon the individual was for a contempt of an order 
the court was authorized to make, and it was for that, and that alone, 
he was punished. I refer as authority on this subject to the opinion 
in Eilenbecker v. Plymouth County (134 U. S., p. 31). 

To return from the illustration, I say that, so far as the courts of 
the United States and the States are concerned, they have denied 
from the very beginning of our Government the right of the legisla- 




CONTEMPTS OF COURT. 


77 


ture to take this power of being the sole investigator of its contempts 
from it, and they have asserted, from the very beginning of our Gov¬ 
ernment, the fact that there exist in the courts of the United States 
inherent powers that did not arise from any legislation establishing 
or ordaining them, and these powers, essential to the administration 
of justice and the performance of their judicial function, could not be 
impaired or destroyed by the legislative branch of the Government, 
although within reasonable limits they could be regulated; but any 
attempt to take from them the power to punish their own contempts 
or to solely investigate the fact as to whether or not a contempt had 
been committed was, under the guise of regulation, a destruction or 
impairment of the judicial power. 

The Chairman. Would it interrupt you, Mr. Emery, to make this 
suggestion, that none of these bills which the committee have 
before them takes away from the courts the power to punish 
for contempts ? These bills all contemplate that contempts com¬ 
mitted in the presence of the court, or so near thereto as to obstruct 
the administration of justice or disobedience of an order of the 
court by any of the officers of the court, shall be punished by the 
court summarily without the intervention of a jury; but in certain 
cases of contempt, called in most of these bills ‘‘indirect contempt,” 
and in some of these law books referred to as “constructive con¬ 
tempt/ ’ that power to punish for contempt shall still be in the 
court, but it regulates the manner of ascertaining the guilt or inno¬ 
cence of the accused, whether he has been correctly accused or 
wrongfully accused; and it merely regulates the manner of ascer¬ 
taining that question of fact but does not undertake to take away 
from the court the power to punish for contempt. 

Mr. Emery. I understand that. It takes from the court the 
power to be the sole judge as to whether or not a contempt was 
committed, and says the person accused of that kind of a contempt 
shall be entitled, at his request, to a jury, who shall pass upon the 
question whether or not he committed the contempt charged. 

That is precisely what occurred in Virginia in 1899, and is discussed 
in Carter’s case, in Ninety-sixth Virginia, 808. I refer to this as a 
general authority on the proposition I have laid down. They are 
answering the very objection which the chairman has just so w T ell 
propounded. There the court said: 

It was contended by counsel for plaintiff in error that, inasmuch as the act of 1897-8 
merely transferred the punishment of contempts from the court to a jury, and even 
made acts punishable as contempts not embraced within the act of 1830-31, it was not 
obnoxious to the objection that it interfered with or diminished the power of the court 
to protect itself. 

To this view we can not assent. It is not a question of the degree or extent of the 
punishment inflicted. It may be that juries would punish a given offense with more 
severity than tht court, but yet the jury is a tribunal separate and distinct from the 
court. The power to punish for contempts is inherent in the courts, and is conferred 
upon them by the constitution by the very act of their creation. It is a trust con¬ 
fided and a duty imposed upon us by the soveriegn people which we can not surrender 
or suffer to be impaired without being recreant to our duty. 

Mr. Webb. They did not take away from the court the power to 
punish? 

Mr. Emery. The statute provided a man should not be fined more 
than $50, or given more than 10 days in jail, unless he had a jury 
trial. Of course it does not make any difference whether the jury 
was to fix the amount of the punishment or not. 


78 


CONTEMPTS OF COURT. 


The Chairman. It seems from the decision you have just quoted 
that the power to fix the quantum of punishment was conferred upon 
the jury, and that the court in Virginia predicated its objection to the 
statute upon the idea that the measure of punishment was to be left 
to the jury: whereas, these bills now before the committee merely 
regulate the process by which the guilt or innocence of the accused is 
to be ascertained, leaving the punishment within the power and 
discretion of the court. 

Mr. Emery. I will show you other decisions that drive right 
straight at the proposition here. 

Mr. Sterling. Did that State statute expressly relate to contempts, 
Mr. Emery? 

Mr. Emery. Yes, sir. The question is stated here by the court as 
follows: 

It is incumbent upon us to consider whether it was within the power of the legisla¬ 
ture to deprive the court of jurisdiction to punish it without the intervention of a jury. 

It did not make any difference whether the jury was to fix the 
amount of the penalty or not. The proposition upon which the 
court was passing, and which he says is the vice of it, is the interposi¬ 
tion of the jury between the judge and the investigation of the com¬ 
mission of the contempt. 

Mr. Littleton. Does he not mean in this wise, that the court, 
through an act of the legislature, can not be compelled to part with 
the power to punish contempts, and that the act of the legislature 
attempted to divorce that power from the court entirely and lodge it 
with the jury, as distinguished from these measures before the com¬ 
mittee, which seek to make the jury the triers of the question of fact, 
but in no wise divorce from the court the power to punish upon a 
return of the trial upon those facts? 

Mr. Emery. Would the gentleman from New York contend that 
it was within the power of the Congress of the United States or any 
State legislature to say to a chancellor, in an equity proceeding, that 
he had to take a jury to ascertain the facts at issue and was bound by 
the finding of that jury? 

Mr. Littleton. If that equitable proceeding involved the destruc¬ 
tion of life or liberty of an individual I should sav the supervening 
power of the Constitution to protect life and liberty would authorize 
them to do so. 

Mr. Emery. It would not make any difference whether incidental 
to the violation of an injunction a crime was committed. There is 
another tribunal to punish that, as the court said in the Debs case. 

But does anyone contend that, quite apart from the question of 
trial by jury in contempt cases, where the proceeding is equitable in 
its nature and is a proceeding in equity to enforce a decree which the 
court has made in equity, the chancellor at any stage of the proceed¬ 
ing can be in conscience bound by the findings of a jury as to ques¬ 
tions of fact ? 

Mr. Littleton. On the question you raised a moment ago, is not 
this true, that it can not be possible the administration of criminal law 
or punishment of violence can ever, under this Government, be lodged 
with the equitable branch of the Government, to be administered 
through the thin guise of an injunctive process, such as in the case you 
cited in Iowa, where an injunction might be issued against a whole 
community, saying they should not commit certain offenses, and then 


CONTEMPTS OF COURT. 


79 


the right to be properly tried for the commission of this offense,which 
has long since been guaranteed to them, should be taken away under 
an injunctive process and they be summarily committed because they 
violated the injunctive process of the court? 

Mr. Emery. The court in the Debs rase said that wherever an 
injunction was violated, the court in enforcing the injunction “by 
proceeding in contempt is not executing the criminal laws of the 
land, but only securing to suitors the rights which it has adjudged 
them entitled to.” A man may violate an injunction—for instance, 
in the Standard Oil or the Tobacco case, one of the defendants might 
resist an officer, and in the resistance of that officer he might com¬ 
mit an assault. The court who tried him for violation of the injunc¬ 
tion would have nothing whatever to do with the assault as a crime, 
and would not punish for the assault but for violation of its order, 
and some other tribunal would take cognizance of the incidental 
crime committed. 

Mr. Littleton. Do you think, with reference to that Iowa propo¬ 
sition which you stated, that the issuance of an injunction against a 
liquor man for violating the excise law ought to enable the court to 
bring him up for violation of the injunction and commit him, and 
thereby try him practically for violation of the excise law, an ex parte 
commitment ? 

Mr. Emery. It is not an ex parte commitment, Mr. Littleton. 

Mr. Sterling. 1 do not think it is punishment for the sale of liquor 
that the injunction is issued. The injunction is issued to prevent 
the sale. If he sold it, then he could be punished for disobedience 
of the injunction. 

Mr. Emery. The proposition is simply this: It is within the power 
of the State to declare the sale or manufacture of liquor or other 
intoxicants a public nuisance. If it is within its power to say it is a 
nuisance, it is within its power to use either its law or equity powers 
to enforce tl>e abatement of the nuisance. In this proceeding in 
equity, having declared it to be a nuisance to sell it and having for¬ 
bidden its sale, and giving every citizen the right to bring an action 
in equity against the person who did manufacture or sell it and 
restrain him from doing so, it was simply using its pow r ers in equity 
as well as in law to enforce the rights of the public as it had declared 
them. 

Mr. Littleton. Is not this a departure from the traditional use of 
the injunction ? Is not this so-called institution of the writ of injunc¬ 
tion in the labor troubles since 1854 a departure from the traditional 
use of the w r rit of injunction? 

Mr. Emery. I do not think so. I do not think there is any ground 
for the statement or the suggestion, so far as the practices of the courts 
are concerned. The principles involved are as old as the injunctive 
writ. 

The court in the Carter case, which I was discussing, goes on to say—• 
and this sums up its conclusion and my proposition. 

In the courts created by the Constitution there is an inherent power of self-defense 
and self-preservation; that this power may be regulated but can not be destroyed or so 
far diminished as to be tendered ineffectual by legislative enactment; that it is a power 
necessarily resident in and to be exercised by the court itself, and that the vice of an 
act which seeks to deprive the court of this inherent power is not cured by providing 
for its exercise by a jury; that while the legislature has the power to regulate the juris- 


80 


CONTEMPTS OF COURT. 


diction of circuit, county, and corporation courts, it can not destroy, while it may 
confine within reasonable bounds, the authority necessary to the exercise of the 
jurisdiction conferred. 

(At this point there was a call of the House.) 

The Chairman. Please suspend a moment, Mr. Emery. There is 
a call of the House, and it is necessary that we go at once to the House. 

Suppose we meet here Monday. Would 10.30 Monday morning 
suit the members of the committee ? Mr. Emery can then continue 
at that hour. If there is no objection, that will be done. [After a 
pause.] There being no objection, the committee will adjourn until 
Monday morning next at 10.30 o'clock. 

(Thereupon, at 12 o'clock noon the committee adjourned until 
Monday, December 11, 1911, at 10.30 o'clock a. m.) 


Monday, December 11 , 1911. 

The committee met at 10.30 o'clock a. m., Hon. Henry D. Clayton, 
chairman, presiding. 

STATEMENT OF JAMES A. EMERY, ESQ.—Continued. 

The Chairman. The committee will be in order, and Mr. Emery 
will continue his statement. The committee took a recess Saturday 
until 10.30 o'clock this morning, for the purpose of having Mr. Emery 
complete his statement. 

Mr. Emery. Mr. Chairman, and gentlemen of the committee, 
during the course of my discussion of the measure before this com¬ 
mittee on last Saturday, I undertook to show that the judicial power 
of the United States was lodged by the Constitution in a separate 
and distinct branch of the Government; that it was vested in one 
Supreme Court and such inferior tribunals as were established and 
ordained by the Federal Congress; that the judicial power was not 
defined in the Constitution, but was recognized as a thing well under¬ 
stood and established, and it was defined by reference to the judicial 

f ower possessed by courts of common law and chancery in England, 
t therefore became necessary to ascertain whether the power to 
investigate the commission of a contempt, and to define it, was an 
inherent judicial power arising from the very nature of the judicial 
function itself and not conferred by any legislature. To this end I 
undertook to call the committee's attention to the fact that, by a 
long line of English authorities, including Mr. Justice Wilmot and 
the great commentators and judges of English courts, from time 
immemorial, the right of a court to protect itself from insult and to 
enforce its decrees by a proceeding in contempt, was recognized as 
incidental to the judicial power. 

At the time of adjournment I was calling the attention of the com¬ 
mittee to the fact that this principle, the right to say what a contempt 
is and to exclusively examine into the question of fact as to whether 
or not it has been committed, is recognized as-an incident of the 
judicial power by the courts both in the States and the United States, 
a power not to be separated from it nor impaired by act of legisla¬ 
ture; although subject, within reasonable limitations, to the regu¬ 
lation of the legislature. 



CONTEMPTS OF COURT. 


81 


Just at the outset, permit me to call the attention of the committee 
again to the fact that the investigation of an alleged contempt is a 
mixed question of fact and law and not a question of fact alone. 
This was pointed out in the most convincing way by the great Chief 
Justice Taney himself in the case of Wart man v. Wartman, in Taney’s 
Reports, page 362, where he says: 

As regards the question whether a contempt has or has not been committed it does 
not depend upon the intention of the party, but upon the act he has done. It is a 
conclusion of law from the act; disobedience to the legitimate authority of the court 
is by law a contempt, unless the party can show sufficient cause to excuse it. 

As to the union of the two things, the judicial power and the juris¬ 
diction, illustrating their complementary practical relationship, I beg 
also to incidentally call your attention to the case of Mayor v. Cooper 
(6 Wallace, 252), where the explanation is so clearly made that it 
seems to bring very plainly to the mind the relationship between the 
flow of the judicial power from one source and the conference of 
jurisdiction from another.. In that case the court say: 

As regards all courts of the United States inferior to this tribunal, two things are 
necessary to create jurisdiction, whether original or appellate. The Constitution 
must have given to the court the capacity to take it, and an act of Congress must have 
supplied it. It is the duty of Congress to act for that purpose up to the limits of the 
granted power. They may fall short obit, but can not exceed it. To the extent that 
such action is not taken the power lies dormant. It can be brought into activity in 
no other way. 

This seems to clearly point out the proposition advanced and sug¬ 
gested as the foundation upon which this argument must necessarily 
rest, that it is within the power of Congress, as it is within the power 
of the legislature of a State, with reference to a constutitional court, 
to partially fix the quantity of pow r er that may flow, but not its 
quality, which is fixed in the organic instrument itself; a clear and 
definite distinction is thus observed between the judicial power 
created by the Constitution and the jurisdiction created in every 
given case, by the act of Congress, except with respect to the original 
jurisdiction of the Supreme Court. 

Yesterday I advanced the proposition that all of the State courts 
of the United States before which the question has been presented 
have recognized that there exists in the courts of the State, and under 
the national Constitution there is in the courts of the United States— 
and I refer now to constitutional courts alone—inherent powers aris¬ 
ing from the nature of their being and which contribute to make them 
a distinct, separate, coordinate branch of the Government; and that 
as a result of this wherever in the States language similar to that found 
in the Constitution of the United States has vested the judicial power 
everywhere State courts of the highest authority, through a long term 
of years, have uniformly held that it is not within the powder of the 
legislature to abridge, impair, or destroy the powder of the judiciary to 
protect its dignity and enforce its decree in a contempt proceeding by 
preventing it from originating and carrying on the investigation as to 
whether or not a contempt has been committed and whether or not 
the thing done was, as a matter of law, a contempt. It has even been 
further held by the State courts that constitutional courts of that 
character could not have their power to punish a contempt limited by 
a statutory definition which prevented them from punishing anything, 
which was in itself a contempt. 

20502—11-6 



82 


CONTEMPTS OF COURT. 


I believe Georgia and Louisiana are the only two States in the Union 
in which the power to limit punishment in contempt cases has been 
expressly conferred by the constitution. In the constitution of 
Georgia there is a clause that the power of the courts to punish for 
contempt shall be limited by legislative acts, Article I, section 1, para¬ 
graph 20. Under that constitutional provision it was held in a pro¬ 
ceeding for contempt that it did not confer upon the legislature the 
right to determine what acts shall constitute contempt, but only the 
power to prescribe the punishment therefor. (Bradley v. State, 111 
Ga., 168.) 

Beginning with such distinguished decisions as that by the Supreme 
court of Pennsylvania, in 1788, in the Oswald case, 1 Dallas, a deci¬ 
sion rendered during the critical period, so called by the historian John 
Fiske, between the end of the lie volutionary War and the adoption 
of the Constitution, we find a recognition of these two propositions 
by the Supreme Court of Pennsylvania, that it is an inherent power 
of a court of at least the superior character to investigate the con¬ 
tempts committed against it, and to decide whether or not the thing 
committed is a contempt; and that the denial of the right of jury 
trial in a contempt case is not a violation of the constitutional provi¬ 
sion requiring jury trial in common-law cases. 

Then there is the well-known and constantly cited case of Middle- 
brook v. State (43 Conn., 257). It was there held respecting a statute 
defining contempts: 

The statute is not to be regarded as conferring the power to punish for contempts, 
but merely as regulating an existing power. The power is inherent in all courts. 

Said the chief justice: 

But independently of the statute, we think the power is inherent in all courts. 
The court of justice must of necessity have the power to preserve its own dignity and 
to protect itself. 

These are merely types of numerous older decisions. 

I called the attention of the committee the other day to Carter’s 
case, in 96 Virginia, and the case of State v. Frew & Hart (24 W. Va., 
p. 416), and the case of Smith v. Speed (11 Okla., 61), as cases in 
which the court was called upon to meet the very proposals of 
this bill. In Carter’s case the act of the legislature under which the 
court was called upon to exercise judgment provided, in language 
very similar to the bill now under consideration, for a distinction 
between so-called direct and indirect contempts, and finally that if 
the accused answered, “trial shall proceed according to the rules 
governing the trial of criminal cases,” precisely as in "this bill. The 
act of the Legislature of Virginia quoted in 'that case provided in 
part as follows: 

After the answer of the accused, or if he fail or refuse to answer, the court may pro¬ 
ceed at the time so fixed to hear and determine such accusation upon such testimony 
as shall be produced. If the accused answer, the trial shall proceed according to 
the rules governing the trial of contempt cases, and the accused shall be entitled 
to compulsory process for his witnesses and to be confronted with the witnesses against 
him. 

Such trial shall be by the court, or, upon the application of the accused, a trial by 
jury shall be had, as in any case of a misdemeanor. 

The point raised in this case was that the court had refused to grant 
the respondent a trial by jury on citation for contempt, as the respond¬ 
ent demanded. 


CONTEMPTS OF COURT. 


83 


Mr. Davis. Before what court was it tried? 

Mr. Emery. It was a circuit court of the city of Lynchburg which 
issued a rule against Carter, the plaintiff in error, to appear before it 
on the first day of the next term and show cause why he should not 
be fined and attached for contempt. 

Mr. Graham. What was the statutory provision in that State on 
that question? 

Mr. Emery. I have just read it. There was a definition of direct 
and indirect contempts, and then, in the subsection, a proceeding 
was provided for cases of indirect contempt, and finally as I have 
read, “that if the accused answer .” and so forth. Of course, the ob¬ 
jection I am making does not apply in cases where the accused either 
pleaded guilty or where he did not demand a jury trial. But in the 
act of the Virginia Legislature it was provided: 

If the accused answer, the trial shall proceed according to the rules governing the 
trial of criminal cases, and the accused shall be entitled to compulsory process for his 
witnesses and to be confronted with the witnesses against him. 

Such trial shall be by the court, or, upon the application of the accused, a trial by 
jury shall be had, as in any case of a misdemeanor. 

Thus, the legislature of Virginia gave the respondent the right to a 
trial by jury in a contempt case, which the court refused to recognize, 
and thus the issue raised was whether or not it was within the power 
of the legislature of Virginia to compel a court to accept a jury to 
ascertain whether or not a contempt had been committed. 

Mr. Howland. What was the act charged as the contempt? 

Mr. Emery (reading): 

To appear before it on the first day of the next term to show cause why he should not 
be fined and attached for contempt, by attempting to obtain a continuance of the 
action of Grubbs against Carter by means of false telegrams. In answer to this rule he 
appeared and stated that he is a resident of the county of N otto way, and that, having 
received a telegram from his attorney, J. Emory Hughes, that his case was pending 
and he must come to Lynchburg on the next train, he wired - in response, “ Sick with 
typhoid fever, and can’t come”; that this statement as to his health was false. 

Mr. Littleton. Was that contempt in the presence of the court? 

Mr. Emery. No. He was absent from the city where court was 
to be held for trial of his case and on that day he sent this telegram 
in order to secure a continuance from the court, stating that he was 
ill, when, as a matter of fact, he was not ill. 

Mr. Littleton. How did the court treat it in that case—as a direct 
or an indirect contempt ? 

Mr. Emery. The court disposed of that in this manner: 

Being of opinion that the defendant was guilty of contempt, we shall not attempt 
any classification of it as a direct or indirect contempt. If it were a direct contempt, 
then its punishment was without doubt to be ascertained and fixed by the court with¬ 
out the intervention of a jury by the terms of the law. 

The law provided that in direct contempts the judge would make 
his own findings, but in the matter of indirect contempts, as in this 
bill, there should be a trial by jury, if demanded by the respondent. 
The court thus states the issue: 

It is incumbent upon us to consider whether it was within the power of the legisla¬ 
ture to deprive the court of jurisdiction to punish it without the intervention of a 
jury. 

To this the court answers: 

In the courts created by the Constitution there is an inherent power of self-defense 
and self-preservation; that this power can be regulated, but can not be destroyed, 


84 


CONTEMPTS OF COURT. 


or so far diminished as to be rendered ineffectual by legislative enactment; that it is 
a power necessarily resident in and to be exercised by the court itself, and that the 
vice of an act which seeks to deprive the court of this inherent power is not cured by 
providing for its exercise by a jury. 

This is the voice of the supreme court of Virginia. 

Mr. Davis. Does not the court predicate its opinion on the fact 
that it was a constitutional court ? 

Mr. Emery. Yes, sir; exactly. 

Mr. Floyd. What is the constitutional provision in that State? 

Mr. Emery. The constitutional provision is that the judicial power 
of the State shall be vested in such courts, naming them. 

Mr. Davis. Singularly enough, in West Virginia we have the su¬ 
preme court described in the constitution, and also the circuit courts, 
and yet the supreme court has twice, since the case of State v. Frew 
& Hart, held the act constitutional as to all courts except the supreme 
court. 

Mr. Emery. That is, as to all courts named in the constitution ? 

Mr. Davis. All courts except the supreme court of appeals, 
although the circuit courts are named in the constitution. 

Air. Emery. You mean as a limitation on their power? 

Air. Davis. Yes. 

Mr. Emery. What cases are those? 

Air. Davis. The cases of State v. AIcClaugherty (33 W. A^a.) and 
State v. Hansford (43 W. Va., 773). 

Air. Emery. I should be very glad to look at any cases of that kind. 

Air. Davis. In the case of State v. Frew & Hart, where the case 
arose in the Supreme Court, the gist of the decision is that the act 
ex vi termini aid not apply to the Supreme Court, because the 
Supreme Court had no machinery for summoning a jury, and there¬ 
fore it could not be inferred that the act was intended to apply to it. 
But in that case, that being the point of the decision, they go on to 
say that the supreme court of appeals having jurisdiction expressly 
defined by the Congress can not be impinged upon by the legislature, 
and that if the act had sought to do so, it would have been uncon¬ 
stitutional for that reason. But they evade that question entirely 
in State v. Frew & Hart, and simply hold the act by its terms did not 
apply to the Supreme Court. In these two later decisions they hold, 
that the act does expressly apply to the circuit courts, and is as to 
them constitutional. 

Mr. Emery. The gentlemen will remember that in that case of 
State v. Frew & Hart, while the court did not avoid that question, 
it said it was not necessary, in view of the fact that it could not be 
interpreted as applying to that court. But they did not hesitate 
to say if it did they would declare it invalid. 

Mr. Davis. That is purely obiter; an expression of opinion, and 
nothing more. 

Air. Emery. They pointed out the long line of decisions in which 
it has been held in other States that, under precisely similar condi¬ 
tions, a legislative act where it did apply to a constitutional court 
was held invalid. They say in Frew & Hart: 

In this country where the courts are in the divisions of power by the constitutions 
of the several States constituted a separate and distinct department of government 
clothed with jurisdiction and not expressly limited by the constitution in their power 
to punish for contempt, the inherent power that is thus necessarily granted them can 
not be taken away by the legislative department of the government. 


CONTEMPTS OF COURT. 


85 


Mr. Davis. You will notice that in State v. Frew & Hart they 
concede,, in the course of their opinion, the constitutionality of the 
act as to the circuit courts, although, of course, that question was 
not there presented for decision. 

Mr. Emery. I do not recall the exact language which they use, 
but I know that they do hold this point, which is held in all the other 
States, that if the court, whatever its name may be, is a court created 
by the constitution, deriving its judicial power therefrom and not 
from the legislature, it is beyond the power of the legislature to take 
away that inherent element in the judicial power, to wit, the right 
to investigate and punish its own contempts. 

Mr. Davis. But they indicate they would so decide if that were 
the question upon which the decision turned. 

Mr. Emery. They say expressly, “We have this power, but it is' 
not necessary to say in this case that the legislature has attempted 
to take it away from us; therefore we do not decide that the act is 
invalid.” 

But my proposition does not rest on that case alone. The question 
has been repeatedly decided in the other jurisdictions. Thus, in 
Nichols v. Judge of Superior Court (130 Mich., 192), decided in 1902, 
the question is likewise met. The judicial power of the State of 
Michigan is constitutionally vested in almost the identical language 
in which it is vested in the courts of the United States. According 
to the Michigan constitution, it resides “in one supreme court, in 
circuit courts, in probate courts,” etc. The supreme court states the 
issue thus: 

The question, therefore, is again presented to this court, Have the circuit courts 
of this State the inherent power to punish for contempts, or are they subject to the 
control of the legislature? The question is an important one in the administration 
of the law. If the legislature can determine what acts shall constitute contempts 
in the circuit courts, it can abolish the power of such courts to punish for the con¬ 
tempts. There is no middle ground; either the courts have the absolute control, 
under the constitution, over contempt proceedings, or they have only such as the 
legislature may see fit to confer. 

And they held flatly and squarely that the legislature can not 
exert such control. 

Before I forget it, let me say that the decision in the Carter case 
(96 Ya.) was re-presented to the supreme court of Virginia in the 
case of Burdette v. Commonwealth (103 Va., 839), and reaffirmed 
and emphasized. 

The case from Michigan to which I have just referred arose on 
application for a writ of habeas corpus because of commitment in 
a contempt proceeding by the superior court of Grand Rapids, a 
part of the circuit-court system. The question was one of jurisdic¬ 
tion, as to the power of the court to proceed for contempt in this case. 

Mr. Littleton. Was that a case in which the legislature had pro¬ 
vided for a trial by jury? 

Mr. Emery. No; it was a case in which they had limited their 
power to punish for contempts. 

Mr. Littleton. You mean the amount of punishment? 

Mr. Emery. By a definition. They thought they had excluded the 
character of the contempt committed. 

Mr. Davis. That case, of course, would not be authority in the 
Federal courts, for we have already section 725. 


86 


CONTEMPTS OF COURT. 


Mr. Emery. I am considering now whether or not the Federal 
courts possess inherent power, and in reply to the suggestion that we 
have section 725, T ask every member of the committee to consider 
this proposition. If Congress repealed section 725 of the act of 1831, 
defining the instances in which the courts of the United States, 
Supreme, circuit, and district, may punish for contempt, would the 
power to punish for contempt cease to exist in the courts of the 
United States ? 

Mr. Davis. Not at all: it would be enlarged. 

Mr. Emery. Then it would still exist. But it would not be by 
virtue of any act of Congress; it would be bv virtue of the inherent 
judicial power itself, or not at all. Tf that be the answer, then that 
conclusively answers the first proposition I lay down, that the power 
to punish for contempt is an inherent judicial power in the courts 
of the United States, and that a« an incident of that power the right 
to investigate whether or not a contempt has been committed, and 
to judge the question of law as to whether or not it is a contempt 
inheres by its nature in the court. It can not. be taken from it. 

Mr. Davis. Is that a logical sequence ? Does that conclusion nec¬ 
essarily follow ? I think we will all concede that the inherent power 
to punish for contempt rests with the court; but that does not go to 
the question whether or not the legislative branch, as to those courts 
within its control, may restrict or regulate the exercise of that power. 

Mr. Emery. I am not objecting to the regulation of power; I am 
objecting to its destruction. It is a contradiction in terms, obviously, 
to say it has the inherent power to punish for contempt, but that 
some other department of the Government can ta^e it away. If it 
can take it away it is not inherent. Another answer is that the legis¬ 
lature can not take the power away, because it did not give it. 

Mr. Davis. It is not a question of taking away, but of regulating 
the exercise. 

Mr. Emery. If you lodge the power to pnnish for contempt, or 
ascertain whether or not a contempt is committed, in a jury, then, 
obviously, it is taken from the judge; and if it is to be taken from the 
judge it must be in the power of Congress to do it. But if the power 
to ascertain whether or not the contempt was committed, and whether 
it is a contempt, is an inherent judicial power, then it can not be 
taken from a constitutional court, because it inheres in that branch 
of the Government. 

Mr. Davis. Let me ask you a question ; if I am interrupting do not 
hesitate to say so. 

Mr. Emery. Not at all. 

Mr. Davis. You say the legislative branch can not take that power 
away from the court because it inheres in it, and I think it would 
follow with equal force that it would be true the courts themselves 
can not surrender that power. 

Mr. Emery. That is true. 

Mr. Davis. And yet there is plenty of precedent that the court, 
upon a contempt proceeding, may, upon his own motion, direct an 
issue of fact to a jury, or he may, as has been done in a number of 
cases, refer it to a master to determine an issue of fact. 

Mr. Emery. Yes, sir. 

Mr. Davis. So that the analogy is precise. He is surrendering, 
divesting himself, according to your theory, of the power to examine 


CONTEMPTS OP COURT. 87 

and investigate, and doing that by his voluntary motion. If lie may 
do it voluntarily, may not the legislature command him to do it ? 

Mr. Emery. Is he surrendering the power ? He is himself the final 
judge of all the facts, and he is himself the final judge of the law. 
But, as has been the well understood practice in chancery a chancellor 
calls in a party to assist him in determining the facts. But notice 
the difference between leaving that to the discretion of the chancellor 
and taking it from him. That is precisely the distinction that was 
observed by Senator Hill in his bill. In that bill—and I call the 
attention of the committee to it now because this seems the appro¬ 
priate time to do so—it was not proposed, as this bill does, to give the 
person accused of contempt a trial by jury as a matter of right. 

The language of the Hill bill is as follows: 

If the accused answer, the trial shall proceed upon testimony produced as in criminal 
cases, and the accused shall be entitled to be confronted with the witnesses against 
him. But such trial shall be by the court, or, in its discretion upon the application of 
the accused, a trial by jury may be had as in a criminal proceeding. 

Under the Hill bill it is therefore in the discretion of the court to 
grant or refuse such a trial upon application. 

Mr. Graham. But that discretion was exhausted when he had 
decided to bring the matter before a jury. He was bound by the 
verdict of the jury. The only tiling he had discretion in was whether 
he would determine it or refer it to a jury, and when he had referred 
it to a jury his discretion was ended. 

Mr. Emery. That is, under the bill. 

Mr. Graham. Yes. 

Mr. Emery. But it was entirely within his own power to deny 
any jury. 

Mr. Graham. Your contention is that in spite of that bill, if it 
had become a law, even had he referred the question to a jury, the 
verdict of the jury would be merely advisory, and he could set it 
aside, if he chose; that is your position? 

Mr. Littleton. Is there not some contention in the argument as 
to the difference between a judge and a jury? The Constitution 
, says the “court.” 

Mr. Emery. Yes, sir. 

Mr. Littleton. It is not possible that a court is not always limited 
to a judge. 

Mr. Emery. Not at all. 

Mr. Littleton. The court is a judge and a jury, a judge without 
a jury, a judge of one man, or as many judges as may be designated. 
Would it be, in your view, a departure from the conditions which 
you have cited, and from the decisions, to make a jury part of a court 
for the purpose of determining the questions of contempt under the 
direction of a judge? In other words, may not a contempt be com¬ 
mitted by tampering with a jury, if the jury is a constitutional part 
of the court? And, therefore, do you not think these cases limit 
the application of the doctrine too much with a view to a fact that 
the court is a judge, instead of a court being a court either of a judge 
or. several judges, or of a judge and jury ? 

Mr. Emery. Of course, when I have used the term “judge,” I am 
using it as a presiding officer of the court, acting in his judicial 
capacity. There have been many cases in which the defense has 
been set u]i that the contempt alleged was not committed against 


88 


CONTEMPTS OF COURT. 


the judge in his judicial capacity, but against him as an individual 
when he was not in court; and it has been uniformly held, in those 
cases, of course, that there was no contempt, and that the remedy 
of the individual, if any, was the same as any other citizen under like 
circumstances. Thus, in some cases, where it has been charged 
that a libel amounted to contempt, it was held that it was not a con¬ 
tempt of court, as in Illinois, in a famous case, but an attack upon 
the private character of the particular judge as an individual. 

Mr. Littleton. If the law were to provide that a judge should 
summon a jury to try the question of indirect contempt, we will say, 
would that jury ana that judge not constitute a court, under the 
meaning of the Constitution ? 

Mr. Emery. Whether that were so or not, Mr. Littleton, the faci 
would remain that under all the precedents cited, and the practice 
from time immemorial, and under the definition of what is the judicial 
power in a matter of contempt, whether we take it from the common 
law or from the uniform practice of English chancery, and whether 
we take it from our State or Federal courts, we can only answer in one 
way, and that is that it has been held again and again, time out of 
mind, that the right to investigate whether or not an alleged contempt 
was committed as a matter of fact, and whether the thing done was a 
contempt, as a matter of law is solely for the court against which the 
contempt is committed, and that every effort to either put that in the 
hands of another tribunal, whether it be another court or a jury, has 
been condemned as beyond the power of the court, or the legislature 
that undertook to do it. In the case of ex parte Bradley in Sixth 
Wallace, an attorney in the Supreme Court of the District of Columbia 
was accused of contempt because of certain conduct in the very pres¬ 
ence of the court, and that court sat both as a supreme court and as a 
criminal court. The alleged contempt was committed during the 
trial of a criminal cause, the court undertook to compel him to answer 
for it while sitting as a supreme court, a thing distinct and different 
from the criminal court in which the contempt was alleged to have 
been committed. Under these circumstances the Supreme Court 
laid down the rule that, as the alleged contempt was committed in the » 
criminal court, another tribunal, it was not in the province of the 
Supreme Court of the District of Columbia, or of the same judge or 
other judges sitting as a supreme court, but constituting a separate 
and distinct tribunal from the one in which the contempt was com¬ 
mitted, to inquire into a contempt committed against another court. 

Mr. Littleton. That was in the presence of the court ? 

Mr. Emery. Yes, sir. 

Mr. Littleton. Would it not be different? For instance, take 
Yew York State, where a man failed to obey an order of the court 
directing him to submit to examination in supplemental proceedings. 
He was brought up for failure to obey that order. Is it not fre¬ 
quently and constantly the practice that the man's contempt may 
be returned before any judge sitting in special term ? 

Mr. Emery. That is where a commissioner or some agent or officer 
of the court has been the victim of the contempt. 

Mr. Littleton. No. You know the policy of supplemental pro¬ 
ceedings. A judgment creditor may sue a judgment debtor, and 
after awhile he may get an order to examine him as to how much 
property he has. If the debtor fails to obey that order of the court— 


CONTEMPTS OF COURT. 


89 


say Judge A issues an order—he may be punished for contempt, on 
return showing his disobedience, before Judge B, who may be, in 
the revolution of the court, sitting there at that time. 

Mr. Emery. The very proposition you set up yourself awhile ago 
answers that. That is the distinction between the person of the 
judge and the court itself. 

Mr. Littleton. Is it not rather a distinction between a contempt 
committed in the presence of the court, which may not change its 
character to punish that contempt, and the contempt committed 
against the process of the court generally, which may be punished 
by any other judge upon a showing upon return that it is a contempt 
of the process of the court. 

Mr. Emery. So far as the right of the court to be the exclusive 
judge of an attack upon itself, amounting to an obstruction of justice 
or disobedience of an order, the whole line of decisions makes no 
distinction whatever between so-called direct and indirect contempts 
in sustaining the right of the court against which the contempt is, 
committed to act without the intervention of another tribunal. 

Mr. McCoy. Did you the other day make any reference to the 
distinction, which Mr. Wilson of Pennsylvania suggested to you, 
between inherent powers and implied powers ? Do you think there 
is any valid distinction of that kind with reference to this question ? 

Mr. Emery. I think a power may be implied without necessarily 
being inherent. I think an inherent power is one which arose from 
the nature of the thing created, so that, if we undertook to examine 
the essence of the thing created, we would find certain things fixed 
in its being, while an implied power may arise from some duty laid 
upon a person or tribunal and necessary to the performance of a 
fixed obligation. Thus, for instance, take the power of Congress to 
punish for contempt. 

In the Kilbourn case, you will remember, it was pointed out that 
the Constitution provided directly only for the punishment of its own 
members by Congress; but from the fact that Congress was given the 
power to inquire into the validity of the election of any one of its 
members, having the power to summon witnesses for the purpose of 
making that inquiry, it was also to be implied that it had the power 
to punish a person who refused to appear as a witness. Thus was a 
power implied absolutely out of the duty fixed by law upon Congress. 
But I say inherent in the case of the judiciary, because we have before 
us a conception of the judicial power totally different from that which 
existed in England; that is, it is a separate and independent branch 
of the Government and was meant to be and remain such. As Chief 
Justice Marshall says, its powers were to run side b}^ side with other 
branches of the Government. Here we have the judicial power itself 
created by the Constitution, and when Congress creates the receptacle 
for it, it is the Constitution alone that vests the power. We say there 
is an inherent power in the very language of investment and the judi¬ 
cial function that arises from it. 

Mr. McCoy. The exercise of the inherent power which you claim 
also is dependent upon a duty to perform it, is it not a duty imposed 
on the court, so that itself would not be a valid distinction between 
the two. You say that Congress has implied powers because it has 
the duty to do something. 

Mr. Emery. Yes, sir. 


90 


CONTEMPTS. OF COURT. 


Mr. McCoy. It is the same way in regard to the inherent powers, 
it is the duty of the court to protect itself, and therefore you claim 
it has the inherent power; that is, it is not a matter personal to the 
court ? 

Mr. Emery. It is in the power of Congress to do many things. 
It has the general power to do a number of things, and it has the 
discreation to select which of those things it will do. A court has 
no choice but to hear a proper case that is presented to it, nor can 
it refuse to decide it or to enforce its judgment. 

Mr. McCoy. It can refuse to inaugurate the proceeding. 

Mr. Emery. It never does inaugurate a proceeding. It is a passive 
body, and it is excited into action by the presentation to it of a jus- 
ticable matter. 

Mr. McCoy. I mean a contempt. 

Mr. Emery. It is in the nature of the judicial power to be com¬ 
pelled to exercise itself upon any matter properly presented to it. 
It has to hear it; it has to decide it; it has to enforce it. Those 
three things are wliat distinguish the judicial power from every 
other power. 

Mr. Graham. As I understood Mr. Wilson’s argument, his position 
was that all governmental power inhered in the people as a body. 

Mr. Emery. Yes, sir. 

Mr. Graham. And that when their inherent power was subdivided 
into legislative, executive, and judicial, the powers of each one of 
those functions of government were only implied, and that none of 
them had any inherent power. I am not sure I understood him 
rightly. 

Mr. Emery. Mr. Wilson would concede that the Constitution 
grants the power given to certain agencies. They granted certain 
power to a judicial, an executive, and a legislative agency, and the 
other morning I called your attention to a decision of Justice Brewer, 
in Two hundred and sixth United States, as to the extent of the 
judicial power that was granted, the fullness of the grant. Of course 
the people can not at once give and keep, and that is why it is espe¬ 
cially provided that all those powers not especially granted are 
retained by them. 

Mr. Wilson. You would not consider a power as being inherent 
that had been specifically granted ? 

Mr. Emery. I do not mean by 11 inherent,” inherited. A thing 
inherited is passed from one to another; to inhere is to be embedded 
in the nature of a thing. 

Mr. Webb. Have you discussed the power of Congress to limit the 
extent of the punishment ? 

Mr. Emery. No. 

Mr. Webb. What is your idea about the power of Congress to limit 
the extent of the punishment in contempt cases ? Can we do it ? 

Mr. Emery. I think within reasonable limits you can. 

Mr. Webb. Who decides what is reasonable and what is unrea¬ 
sonable ? 

Mr. Emery. In the last analysis it must be a court, nobody else. 
No other body has that power. That is precisely what the State 
courts have repeatedly said. It does not lodge in the courts because 
of any reason personal to the judges. The judicial power, and its 
judicial agencies, the judges, ai they themselves say again and again, 


CONTEMPTS OF COURT. 


91 


are merely exercising the powers conferred upon them by the people, 
to be their agents, and when they punish for contempt, they perform 
a duty which rests upon them by virtue of the organic law creating 
them; they are merely the trustees of the power of punishing, in their 
person or in their court, the thing which is done to degrade the people’s 
representative or prevent the accomplishment of the purposes for 
which the courts exist. 

Mr. Webb. If these courts have the inherent right to punish for 
contempt at their discretion, according to your argument, are we not 
violating this inherent right when we attempt to limit it in any degree ? 

Mr. Emery. Not at all; no more than you are violating their inher¬ 
ent right to hear a cause when you decide which causes they shall hear 
and which they shall not. 

Mr. Webb. Suppose we fix the punishment at $100 for a contempt 
and the court does not think that is sufficient; have they the power to 
set that aside and punish the offender by the imposition of a fine of 
$5,000 ? 

Mr. Emery. The question of the policy of Congress in doing so 
would not be open for discussion; but 1 say with respect to any inherent 
power of that character the question the court might be called upon 
to decide, according to the nature of the case, would be whether or not 
it prevented the judicial power from performing its function. 

Mr. Webb. It seems to me, according to your argument, if the court 
has the inherent power to punish for contempt it also has the inherent 
power to punish at its own discretion, and we can not take any of that 
away. 

Mr. Emery. The question is not directly raised here as follow far 
you can limit that power. 

Mr. Webb. No, it is not. 

Mr. Emery. I think there must necessarily be a limit to it. 

But in determining it in any instance the gentlemen must meet 
this situation: If you can fix any limit on its power to punish for con¬ 
tempt, or you alone may say what shall be a contempt, then the 
legislature possesses the complete power to destroy the judiciary, 
because it can take entirely from it the right of self-defense; it can 
take absolutely from it the right to enforce its decrees and leave it 
stripped of everything that makes it the depositary and adminis¬ 
trator of judicial power, leaving it, as one court says, “so contempti¬ 
ble in itself that it would be contemptible to everyone else.” 

Mr. Webb. I came to the conclusion from your argument that the 
court has the power to punish to the full extent of its discretion, only 
limited by the words in the Constitution that prevent cruel and 
unusual punishments, and at the last the court itself is the judge of 
what that punishment shall be. 

Mr. Emery. Surely the gentleman will distinguish between regu¬ 
lating a power and inpairing or destroying it. 

Mr. Webb. We can not regulate an inherent power. 

Mr. Emery. That is precisely what the Supreme Court of Missouri 
says in State v. Shepherd (177 Mo.); you can not regulate an inherent 
power. 

Mr. Webb. Then if we can not, we can not regulate the punishment. 

Mr. Emery. I sa} r it is not necessary to go as far as that in this 
discussion to meet the circumstances of this bill. It asserts more 
than is required. 


92 


CONTEMPTS OF COURT. 


The Chairman. Under the power to regulate a court can Congress 
abridge the pqwer of the courts in contempt cases ? 

Mr. Emery. I think that is necessarily true, if it has the power to 
regulate. 

The Chairman. Then if it can, under the regulating power, abridge 
the power of courts to punish in contempt cases, why can it not pursue 
the process of abridgment so that it deprives the court virtually of 
any power to punish contempt at all ? 

Mr. Emery. I think, Mr. Chairman, that is answered by a long line 
of decisions. You alone are the judge of what remedies may be 
applied to a suitor, but that does not mean you can take from a suitor 
every remedy he has, or you can take any essential remedy necessary 
to protect constitutional rights, unless you give others that are equiva¬ 
lent. It has been decided again and again that because you possessed 
the power to fix the remedies you could not take them away from an 
individual entirely. That seems to illustrate the difference between 
regulating the use of a power and impairing or destroying it, especially, 
as in this case, where it affects a coordinate and independent power, 
deriving its authority from the same source as Congress. 

Mr. Henry. Would you say Congress has any inherent power? 

Mr. Emery. I should say, as the Supreme Court did in the Kilbourn 
case, that it had an inherent power to punish for contempt, but not a 
general power to punish for contempt. 

Mr. Henry. Can you think of any other inherent powers of Con¬ 
gress ? 

Mr. Emery. The power to preserve order, to compel the attendance 
of its own Members. I do not know whether to pursue the suggestion 
made by Mr. McCoy to call that an inherent or an implied power. 

Mr. Henry. Would you say the Chief Executive has any inherent 
powers ? What I want to get at is this: Whether 3-011 think only the 
courts have inherent powers and that Congress has no inherent powers, 
and the Chief Executive has no inherent powers; and if you do think 
so, why? 

Mr. Emery. If you will pardon me, I do not think, the simile is 
applicable, for this reason: That the Constitution has enumerated the 
powers of Congress in many paragraphs. Congress shall have power 
to do this, that, and the other thing, and it has been frequently held 
that is the limit of its power. 

Mr. Henry. And so I think it is with the Federal courts. I put the 
three coordinate branches on the same basis. 

Mr. Emery. The Constitution did not. 

Mr. Henry. I think it did. We just differ in opinion as to that. 

Mr. Emery. There is, perhaps, I think 3-011 will admit, a difference 
there. The Constitution has defined, for instance, wiiat powers the 
President shall exercise and named them. It has defined what 
pow-ers Congress shall exercise and named them. But of the judi¬ 
ciary department it has simply said it shall have judicial pow r er in 
law and equity and left that to be defined by reference to an estab¬ 
lished power well known to the framers of our Constitution. 

Mr. Henry. In order that 3-ou may understand me thoroughly, I 
think that the Constitution gave judicial power to the courts just as 
it gave executive power to the President and just as it gave legis¬ 
lative pow-er to Congress—and I am using the terms used in the Con¬ 
stitution—that it meant for Congress to control whatever judicial 


CONTEMPTS OF COURT. 


93 


ptfwer of the creatures of Congress it saw proper to control if it 
brought those courts into existence, and it used the words “judicial 
power” only for that purpose in order that there might not-be judicial 
power left in Congress, and there might not be judicial power con¬ 
ferred on the Chief Executive. That is the only reason those phrases 
were selected by the framers of the Constitution. 

Mr. Emery. Mr. Justice Brewer has answered your question, Mr. 
Henry, completely in the case of Kansas v. Colorado (206 U. S.), 
where he points out the extent of the power conferred, the restrictions 
upon the legislative, and the lack of restriction upon the judicial 
power. 

Mr. Henry. Yes : I have read that case. 

Mr. McCoy. If it will not get you too far away from your line of 
argument, you have been speaking of courts which somebody said 
would be too contemptible for contempt, or something of that kind. 
What sort of a court, if it is a court, is provided for, or has Congress 
power to establish, under the gift of powers to Congress as follows: 

To constitute tribunals inferior to the Supreme Court? 

That is one of the express powers. 

Mr. Emery. I think the first case in which that section was con¬ 
strued was the case of Canter v. Insurance Company (1 Dallas), by 
Mr. Justice Marshall, where he made the distinction, as I pointed out 
the other day, between constitutional courts, or those which derived 
their authority from the Constitution, and legislative courts, or those 
which derived their authority from Congress under that express sec¬ 
tion. All the territorial courts may be said to represent the exercise 
of that power. 

Mr. McCoy. You would think that meant that the express power 
was to create some tribunal different from that referred to in section 1 
of article 3, giving the power to establish inferior courts? 

Mr. Emery. Manifestly. If the Constitution vested this power in 
the courts in one place, it could not be vested in somebody else in 
another place without a self-evident contradiction; that section has 
been construed in many cases and distinguished from section 1 of 
article 3 . 

Mr. Graham. Just one more point. The Constitution, as I recall 
the language of it, provides that the judicial department shall con¬ 
sist of a supreme court and such other courts as may be established. 
Would you concede that Congress has power to determine what shall 
constitute a court? For instance, there must be a clerk, and there 
must be a marshal or sheriff before there is a court. Could Congress 
go further and say, for this particular purpose, that there must be a 
jury to constitute a court? Do you think Congress has that power? 

Mr. Emery. If you mean that Congress could say that a court of 
equity- 

Mr. Graham. Any court. 

Mr. Emery. Any court, then—that is, that Congress would under¬ 
take to prescribe the instrumentalities of the court is an obvious 
result of its right to fix the jurisdiction and the other conditions to 
which you refer.’ But that it shall change the nature of the judicial 
power under any form of legislation is obviously beyond its power. 
Otherwise it can not be a coordinate but a superior branch of the 
Government. 


94 


CONTEMPTS OF COURT. 


Mr. Graham. That would not be a change of its judicial power 
at all. 

Mr. Emery. It would be a change, presuming it to be one of the 
only two kinds of courts with which we are familiar and the only two 
kinds that were known to the framers of the Constitution—that is, 
courts of common law and courts of equity. It has been repeatedly 
said by all the interpreters of the Constitution that the judicial power 
was not defined in the Constitution but was spoken of as something 
well understood and established. 

To say that Congress could create a court of either kind and strip 
it of the essential things that made it that kind of a court, must be 
self-destructive; that is, if it made an equity court on the one 
hand, and compelled it to bind its conscience by the findings of a 
jury on matters of fact; or created a law court, on the other hand, 
and made the court itself, without a jury, the judge of questions of 
fact as well as of law—because in reply to your question, if it can 
make a court on the one hand accept a jury where, by the nature of 
things, at common law or in equity, it did not have one, then, on 
the other hand, it can compel the jury to be taken away under pre¬ 
cisely similar conditions. 

Mr. Graham. You do not rightly interpret my language. Where 
you say make a court accept a jury I say make a jury a part of the 
court—a necessary, constituent element of the court. 

Mr. Emery. What kind of a court? 

Mr. Graham. A court. Just now, as I illustrated, the clerk is a 
necessary part of any court; so is a marshal or sheriff. There could 
be no court without those officers. Could Congress go on and say, 
neither shall there be a court for such purposes without a jury? 

Mr. Emery. My reply has to be the same. 

Mr. Graham. That is, it could not be so? 

Mr. Emery. If it is an equity court, and to exercise an equity 
jurisdiction, it can not make a jury a part of that court, to do the 
things which an equitable jurisdiction forbade. 

Mr. Graham. I did not want to argue it with you; I just wanted 
your view. 

Mr. Emery. I could not, in view of what I said, think otherwise. 

The Chairman. Mr. Emery, I assume that you will file a brief of 
argument with the committee after you have concluded your oral 
statement ? 

Mr. Emery. Yes, sir. 

The Chairman. I want you, when you come to consider that, to 
answer this question, whether or not it is competent for the legisla¬ 
ture—that is, Congress, in this case—to designate cases in which a 
court may punish summarily. 

Mr. McCoy. Mr. Emery, just one question more. Take a look at 
article 3 , sections 1 and 2, and say whether you believe the words 
“the judicial power” were intended to connote exactly the same 
thing in each of those sections; or whether, in section 2, they were 
meant to refer to jurisdiction other than what you call powers. 

Mr. Emery. No, I do not. I think it means the same tiling in 
both. It only enumerates the things to which the power may be 
applied. There are other things. For instance, Congress could not 
give the Supreme Court any original jurisdiction other than what it 


CONTEMPTS OF COURT. 95 

has. It could not create a new thing upon which it could exercise 
its original power. 

Mr. McCoy. Is not section 2 an attempt to confer jurisdiction in 
certain cases? 

Mr. Emery. No. I understand, in a Federal case, Federal juris¬ 
diction always depends upon one of two things, either upon the 
character of the controversy, or upon the character of the persons 
involved in the controversy, and those two things alone answer the 
question as to whether or not it is a Federal controversy. I am 
speaking of Federal courts, of course, and confining the discussion, 
necessarily, to things of which a Federal court may take cognizance. 
It can not, of course, take cognizance of a vast number of* things left 
with the States. 

Mr. McCoy. Section 2 is the section that provides their jurisdic¬ 
tion, is it not ? 

Mr. Emery. Not necessarily their jurisdiction. It is the charac¬ 
ter of controversies to which it can be applied. Congress could give 
that jurisdiction in those cases, if you please—original jurisdiction— 
under the general power to give it; but if it did so, the court itself 
could not act, for the reason that its power has been limited to cer¬ 
tain controversies. Congress can not extend its jurisdiction there. 

Mr. McCoy. No; but the Constitution there says in what cases the 
Supreme Court can act. It gives it original jurisdiction in some cases 
and appellate jurisdiction in others. My point is this, that possibly 
the words “judicial power,” as used there, might be equivalent to 
“jurisdiction of the Supreme Court shall extend to so-and-so.” 

Mr. Emery. I think that has been generally construed to refer to 
the judicial power of the Nation as distinguished from the judicial 
power of the States, and in respect of controversies to which the 
national judicial power can be applied. 

Mr. McCoy. Then it would be a question of jurisdiction, would it 
not? 

Mr. Emery. No, I think it is more than that. 

It is obviously impossible for me, Mr. Chairman, to cover all the 
ground within the time your indulgence lias kindly given me. I want, 
however, to call your attention to a few more State cases. Then I 
may cite a few more Federal cases, and will then conclude with a sup¬ 
plemental brief that may put my arguments more concisely than I 
have been able to do, subject to necessary interruptions. 

I do not want to refer to a long line of old cases in which the doc¬ 
trines I have here stated have been uniformly held for a number of 
years. I have already referred to some new cases in which the doc¬ 
trine stated in the case of Frew & Hart (24 W. Va.) and in Carter’s 
case (96 Va.) was affirmed. I called your attention to the case in the 
Oklahoma Reports (Smith v. Speed, 11 Okla.), because it illustrated 
the application of the same principles in Territorial government, an 
attempt being made by a Territorial legislature to make a Territorial 
court accept a jury in contempt cases. 

Another fairly recent case with the same issue is State v. Shepherd 
(177 Mo., 205 ),'in the supreme court of Missouri: 

This case decides that under the constitution of Missouri a court of record has an 
inherent power to investigate the commission of a contempt and punish it. That the 
fact that a contempt is not triable by jury as a matter of right or privilege and that 
the legislature has no power to take away, abridge, impair, limit, or regulate the 


96 


CONTEMPTS OF COURT. 


power of courts, of record to punish for contempt, and section 1616 of the Revised 
Statutes of Missouri, 1899, is unconstitutional in so far as it attempts to do these things. 

Mr. Webb. That decision has been pretty severely criticized by 
law writers, has it not ? 

Mr. Emery. I think a pretty large number of decisions have been 
criticized. 

. Mr. Webb. I mean that one particularly. 

Mr. Emery. I do not understand it was criticized on doctrine 
stated here, but on the question of whether or not the acts committed 
were a contempt. There have been many criticisms of courts for 
punishing newspaper editors for articles published during trials. In 
the Shepherd case, during the pendency of an action for damages the 
court was accused of being corrupt, owned by the railroads, and having 
agreed to decide the case a certain way. That sounds like a fairly 
good case of contempt. 

In Hale v. The State (55 Ohio St. Kep., -210) is another case in 
point: 

In this case the inherent power to punish contempts and enforce orders of court by 
summary proceedings is fully sustained, and it is said of sections 6906 and 6907 of the 
Revised Statutes, which make certain acts formerly punishable as contempts now 
punishable by indictment as offenses against public justice, that if it is to be inter¬ 
preted to take away from a constitutional court its inherent right to punish offenses 
of this character when they are contempts of court, the statute will be invalidated. 

In Ex parte McCown (139 North Carolina), decided in 1905, sections 
648 to 657 of legislative act of 1871 were pleaded to prevent punish¬ 
ment for contempt. The court said: 

We are satisfied that, at common law the acts and conduct of the petitioner, as set out 
of the case, constitute a contempt of court, and if the statute does not embrace this 
case and in terms repeals the common law applicable to it, we would not hesitate to 
declare the statute in that resp'ect unconstitutional and void for reasons which we will 
now state. 

Of course the constitution of the State of North Carolina vested 
the judicial power in certain courts and gave them common law pow¬ 
ers and powers in equity; and it was here held that the legislature 
could not prevent the courts by statutory definition from punishing 
a common-law contempt of court. 

In Cheadle v. The State (110 Ind., 301) the court holds that it is a 
power inherent in courts of superior jurisdiction to determine what is 
a contempt and to punish it, and the legislature can not abridge tills 
power so as to impair or destroy it. 

There is another aspect of this matter to which I want also to call 
the attention of the committee for just a moment, and that is this: 

Whenever we consider civil contempts, where a remedy has been 
given to a suitor, and the order made has been refused obedience, it 
becomes the duty of the court, as a step in an equitable proceeding, 
to enforce that order; and the query must then arise under the proposal 
of this bill whether or not, in an equitable proceeding, irrespective of 
any question of contempts, it is within the power of the legislature 
to compel a court of equity to accept a jury and bind its conscience 
by their finding of fact. On that there are two famous cases that 
seem to present an insuperable obstacle to this measure. One is the 
case of Call an v. Judd, in 23 Wisconsin, and old case, again and again 
referred to in the Supreme Court of the United States and in the 
circuit courts of the United States; and the other is the equally 


CONTEMPTS OF COURT. 


97 


authorativeeaseof Kalamazoo v. Superior Court Judge, in 7o Michigan, 
In that case, under a statute of the State of Michigan, in an equitable 
proceeding a jury had been called in, under statutory compulsion, 
and the suitor in the case applied for a writ of mandamus to compel 
the chancellor to make his findings of fact without the jury required 
by the statute, asserting that he was entitled to the full equitable 
powers and procedure. That is the case that Judge Davenport 
referred to the other day, and I will just call your attention to a 
statement in it. It is a unanimous decision, and has been reaffirmed 
and ratified by the Supreme Court of Michigan again and again, and it 
has the same effect in principle as the decision in the case of Callan v. 
Judd. 

Said the court there: 

It is within the power of a legislature to change the formalities of legal procedure, 
but it is not competent to make such changes as to impair the enforcement of rights, 
* * * The functions of judges in equity cases in dealing with them is as well 

settled a part of the judicial power and as necessary to its administration as the 
functions of juries in common-law cases. Our constitutions are framed to protect all 
rights. When they vest judicial power they do so in accordance with all of its essen¬ 
tials, and when they vest it in any court they vest it as efficient for the protection of 
rights, and not subject to be distorted or made inadequate. The right to have equity 
controversies dealt with by equitable methods is as sacred as the right of trial by jury. 
Whatever may be the machinery for gathering testimony or enforcing decrees, the 
facts and the law must be decided together; and when a chancellor desires to have the 
aid of a jury to find out how facts appear to such unprofessional men, it can only be 
done by submitting single issues of pure fact, and they can not foreclose him in his 
conclusions unless they convince his judgment. 

And again: 

In all ages and in all countries this distinction by nature, which was never 
called “equitable” except in English jurisprudence, where it was first so called 
from an idea that the rights were imperfect because unknown in the rude ages, when 
property was scanty and business almost unheard of in the regions outside of great 
cities, has been recognized and provided for by suitable methods substantially similar 
in character. * * * The system of chancery jurisprudence has been developed as 
carefully and as judiciously as any part of the legal system, and the judicial power 
includes it, and always must include it. Any change which transfers the power that 
belongs to a judge to a jury, or to any other person or body, is as plain a violation of the 
Constitution as one which should give the courts executive or legislative power vested 
elsewhere. The cognizance of equitable questions belongs to the judiciary as a part 
of the judicial power, and under our Constitution must remain vested where it always 
has been vested heretofore. (Kalamazoo v. Circuit Judge, 75 Mich., 274.) 

And the constitutional language vesting the judicial power in Michi¬ 
gan is substantially the same as vests it in the Federal courts. 

Mr. Graham. That would override the provision as to cruel and 
unusual punishments? 

Mr. Emery. No. Every power that is granted in the Constitu¬ 
tion is granted subject to the checks and balances. 

Mr. Graham. Who will fix the limitation where the cruel and 
unusual punishments begin—the court or some one else ? 

Mr. Emery. Of course, the court has been called upon many times 
to pass upon that. Do you mean in any particular instance where 
that is offered as a defense ? 

Mr. Graham. 1 mean in a case where the common sense of a man 
would say the court had inflicted cruel and unusual punushment. 
Must the court still remain the judge, or shall some other body than 
the court determine it ? 

20502—11-7 


98 


CONTEMPTS OF COURT. 


Air. Emery. I think the principle you have laid down is the very 
principle which would fix the mind of the court. 

Mr. Graham. It might not. The argument that you have read 
from that case suggests no limitations whatever except obedience on 
the part of the person in contempt. 

Mr. Emery. Pardon me. The only principle settled by that case 
is that a man in an equitable proceeding is entitled to equitable pro¬ 
cedure, and in the equitable procedure the chancellor is at once the 
judge of the facts and law, and if the legislature undertakes to take 
from either the individual or the court the power to proceed in an 
equitable manner, it has deprived the one of an essential part of the 
judicial power and the other of “due process of law.” That is all. 

Mr. Graham. But, so far as that is any authority in support of 
your position, it simply means that by purely equitable procedure the 
judge shall enforce his order, and that means he shall have the power 
without limitation. 

Mr. Emery. It does not mean without limitation, necessarily. 

Mr. Graham. He enforces such punishment as he may think fit in 
any particular case of contempt. When } r ou run up against the check 
and balance you referred to of cruel and unusual punishments, there 
is what nowadays we refer to as a twilight zone. Who will define the 
boundaries of that zone ? Must the court do that, or can the legisla¬ 
ture take a hand in it ?. 

Mr. Emery. The legislature can define cruel and unusual punish¬ 
ments; but, as a matter of fact, I will call to your attention that in 
most of the decisions in which that inhibition has been enforced, 
especially after the Civil War, the Supreme Court was called upon 
to protect the citizen against an act of the legislature, and not against 
an act of the court. I mean that in notable cases the legislatures 
provided such drastic forms of punishment, I suppose under the 
feeling aroused by the great civil conflict, that the courts were called 
upon to declare certain penalties cruel and unusual punishments. 

Mr. Graham. But you could not from that conclude that the 
legislature should not have anything to do with the matter ? 

Mr. Emery. No, indeed. I only suggest it because in your mind 
it seems you think it necessary that the citizen be protected, through 
a regulation of contempt procedure, from cruel and unusual punish¬ 
ment. 

Mr. Graham. Just the converse. Is there not some mean course 
between these two extremes? 

Mr. Emery. I do not see anything in this case that in any way 
limits that proposition. 

Mr. Henry. Suppose the constitution of Michigan had abolished 
all distinction between law and equity, as many of the States have 
done in their courts, would that decision have been that way then ? 

Mr. Emery. Of course not; because the Constitution is the grant 
of power, and we are arguing from a Constitution in being; not from 
what might be, but what it is. 

Mr. Henry. That decision, then, was based on the provision in 
the Michigan constitution ? 

Mr. Emery. Yes, sir; on a statement in the Michigan constitution 
essentially similar to the one in our own Constitution. 

Mr. Henry. What was the nature of that case ? It was not a 
contempt case? 


CONTEMPTS OF COURT. 


99 


Mr. Emery. No; it was not a contempt case. 

Mr. Henryl What was the nature of it ? 

Mr. Emery. This was a proceeding for mandamus. A man had 
brought an action in equity at a time when there was a statute 
passed by the legislature which provided that, in certain cases that 
were equitable in their nature, a jury must be called in to pass on 
the facts, and the original proceeding was governed by that statute. 

Then, an appeal was had, on the ground that the legislature could 
not compel the chancellor to accept a jury and bind his conscience as 
to the facts in an equitable proceeding, and that the citizen was con¬ 
stitutionally entitled to an equitable procedure, in which the chan¬ 
cellor was the judge of both the facts and the law; mandamus was 
asked to compel the court to rehear the case in that way, and the 
Supreme Court of Michigan, on that presentation, decided that the 
statute undertaking to compel the chancellor to accept a jury was 
unconstitutional for that reason. 

Mr. Henry. I wish you would put that provision of the Michigan 
constitution in your remarks. 

Mr. Emery. Yes, sir; I will be glad to. 

The judicial power is vested in one supreme court, in circuit courts, in probate courts, 
and in justices of the peace. (Art. YI, sec —.) 

Mr. Chairman, I could rehearse similar decisions here at great 
length, and will confine them in a brief. But I want to call your 
attention just for a*moment, not to a number, as I would like to, but 
to a few decisions of the Supreme Court of the United States on the 
question of whether the power to exclusively investigate the com¬ 
mission of an alleged contempt is one which lodges in a court as an 
inherent judicial power. There is no use going over the earlier cases. 

There are a number which I will cite in a brief, Ex parte Terry (128 
U. S.); Eilenbecker v. Plymouth County District Court (134 U. S.); 
the Interstate Commerce Commission v. Brimson (154 U. S.), in 
which the court says if it has ever been held anywhere that there is a 
right of trial by jury in a contempt case it is unknown to the court. 
But there is one famous case which meets this issue squarely; that of 
Ex parte Debs (158 U. S.). In the Debs case Mr. Lyman Trumbull 
raised, as an issue on the appeal from the decision punishing Debs for 
contempt, that he had been punished by a proceeding criminal in its 
nature, without the intervention of a jury, as was his constitutional 
right, and the Supreme Court in passing on that question was com¬ 
pelled to review the function of a court in a contempt proceeding. 
It said: 

The power of a court to make an order carries with it the equal power to punish for 
a disobedience of that order, and the inquiry as to the question of disobedience has 
been from time immemorial the special function of the court; and this is no technical 
rule. In order that a court may compel obedience to its orders it must have the right 
to inquire whether there has been any disobedience thereof. To submit the question 
of disobedience to another tribunal, be it a jury or another court, would operate to 
deprive the proceeding of half its efficiency. 

And the case goes on to review a number of cases at the common 
law and in the various courts of the United States and State courts 
on the same propositiou. 

Mr. Littleton. Does he comment at all on the question as to 
whether, in addition to being an impairment of its efficiency, it would 


100 


CONTEMPTS OF COURT. 


be unconstitutional or forbidden by the Constitution to transfer to 
another court or to a jury? Is there any comment in the case ? 

Mr. Emery. No, there is not. He refers to other cases and quotes 
from them, in which that issue was raised. Of course, finally in the 
Gompers case, in 221 United States, we find the Supreme Court of 
the United States reaffirming all that has been here said. 

There has been a general recognition of the fact that the courts are clothed with 
this power— 

That is, the power of punishing for contempt and making an 
inquiry into the fact of contempt— 

and must be authorized to exercise it without referring the issues of fact or law to 
another tribunal or to a jury in the same tribunal. For if there was no such authority 
in the first instance there would be no power to enforce its orders if they were dis¬ 
regarded in such independent investigation. Without authority to act promptly 
and independently the courts could not administer public justice or enforce the rights 
of private litigants. 

And in the case of Bessette v. Conkey Co. (194, U. S.), the court 
is quoted as affirming that the power to punish contempt is “an 
inherent power. ” 

Mr. Floyd. Is it not a fact that in both of these decisions referred 
to there is simply no authority by statute directly authorizing the 
court to punish in those particular cases, but no authority in the 
statute limiting or forbidding it? Is not that the status of the law 
in regard to both those cases ? 

Mr. Emery. Both those cases are decisions under existing statute. 

Mr. Floyd. If, under the authority to regulate, we forbid that 
thing, do you contend that is unconstitutional? 

Mr. Emery. I contend that the attempt to take from the court tiie 
right to inquire into the fact as to whether or not a contempt has been 
committed in a particular case deprives the court of an inherent right. 
That has been declared from time immemorial and during a long line 
of decisions by the Federal Supreme Court and the supreme courts 
of the various States. 

Mr. Floyd. In the Debs case, for instance, the attorney represent¬ 
ing Debs raised the point—I suppose Mr. Lyman Trumbull—that he 
was entitled to a jury under existing law, where there is no statute 
providing for a jury in such case. 

Mr. Emery. No. He claimed that the proceeding in contempt was 
a proceeding criminal in its nature, and he was entitled to a jury. 

Mr. Floyd. That the general statute providing for a jury applied ? 

Mr. Emery. That he was entitled to a jury in any criminal case. 

Mr. Floyd. But there was no direct authorization for a jury in 
that kind of a case under existing law at that time? 

Mr. Emery. If it was a criminal case there would be. A man is 
entitled by constitutional right to a jury trial in a criminal case, and 
his contention was that this was a criminal case—criminal in its 
nature, criminal in its procedure, and criminal in its punishment. 

Mr. Floyd. That is a very different proposition—it is not based 
on a criminal statute—to punish by an order by virtue of an inherent 
power of the court that has never been limited by legislative 
limitation. 

Mr. Emery. I wanted to distinguish, of course, between the limita¬ 
tion and the punishment itself. It is not necessary to pass on the 
question of whether you can limit, the amount of punishment the 


CONTEMPTS OF COURT. 


101 


court may render. I am concerned in this inquiry as to whether or 
not you can take from the court the power to pass on the question of 
contempt and give it to a iui v. That is what you are attempting 
to do in this bill. 

Mr. Webb. Is it not as much an inherent right of the court to 
punish in its discretion as it is to find whether an offense has been 
committed ? 

Mr. Emery. The power to punish contempt in the English courts 
was limited a number of times—that is, as to the quantum of punish¬ 
ment. 

Mr. Webb. You do not hold, then, that the right to punish in the 
discretion of the court is inherent ? 

Mr. Emery. You mean the amount of punishment? 

Mr. Webb. Yes. 

Mr. Emery. I do not think that is essential at all. Mv personal 
opinion is that the amount of punishment is not essential, unless it 
comes down to the question where Congress should say that whenever 
a decree of a court was violated no person could be punished more 
than a $5 fine, or imprisonment for more than 24 hours in jail. I 
should say without hesitation that would be invalid, for two reasons, 
one quite apart from the question here involved, because it would be 
a question of the right of the suitor to due process of law. 

Mr. McCoy. Do you not think the Debs case may sometime come 
to be an entering wedge to get the courts to consider this whole mat¬ 
ter as a question of efficiency? They said to take away or modify 
that power would be to deprive them of some of their efficiency. 
In other words, they treated it as a practical question, apparently. 

Mr. Emery. That is only in passing. In one case here, in Fifth 
Missouri, a very old case, you have the converse of this case put in a 
startling way. A constable is cited to appear and show cause why 
he did not serve a process, and the court allowed the constable to make 
his case before a jury. The Supreme Court reversed the case on the 
ground that the jury could not be brought in. The courts have 
said again and again that it is not a. matter of their personal wishes. 
They must exercise these powers given them as agents of the people 
in accordance with the manner in which the Constitution directs them 
to exercise them. The suitor who seeks a remedy has rights, as w ell 
as a contemnor. He comes in to have his rights enforced: the other 
party is avoiding a violation of law. The suitor lias constitutional 
rights as well worth considering as the person who is refusing to 
obey the court’s order. 

Mr. Littleton. Is there not a broad line between the cases we 
are reallv considering and the ordinary cases where courts attempt to 
punish for contempt ? For instance, if a court of equity should enter 
a decree decreeing specific performance, and somebody should fail 
to obey the decree, or any of the ordinary decrees or orders issued 
in ordinary equity proceedings, we might, for the sake of the argu¬ 
ment, concede that nobody would wish to have a trial by jury on a 
return of an order of that sort, 

Mr. Emery. That is precisely wdiat this bill demands. 

Mr. Littleton. I am talking about it now to see if I can not strike 
a line of cleavage. There are ordinary contempts, such as failure to 
obev an order or decree for specific performance. On the other hand, 


102 


CONTEMPTS OF COURT. 


there have grown up in this country, as evidenced in this Iowa legis¬ 
lation wdiich you speak of as declaring selling liquor to be a nuisance, 
and by reason of the issuance of an injunction substituting an injunc¬ 
tion for the enforcement of criminal law, there have grown up in 
industrial disputes, in some instances, abuses for which injunctions 
have been issued to forbid offenses of violence, as attempts to destroy 
property or attempts to ipjure property. Is there not some middle 
ground where the injunction can be withdrawn as a substitute for the 
enforcement of criminal law T and men can be given the right of trial 
by jury in substance and in fact, as they are entitled to, for the com¬ 
mission of alleged offenses, instead of summarily committing them as 
for the violation of an injunction process and making it a substitute 
for the enforcement of criminal law ? 

Mr. Emery. I can not agree with the premises you lay down. The 
first answer is, This summary proceeding in the abatement of a nui¬ 
sance like the sale of liquor is not an innovation. It was known to 
the English law. You will find it in the statute of King James, in 
1634. 

Mr. Littleton. Did it also make it a crime in King James’s statute ? 

Mr. Emery. Most everything forbidden was a crime in those days. 
I do not know whether that particular thing was or not. I am speak¬ 
ing now of the police power that was exercised and the drastic nature 
of punishment. 

Mr. Littleton. The point I am getting at is this: Is it possible for 
us to go on declaring all sorts of offenses nuisances, and by that means, 
in the guise of an injunction, deprive persons who are said to be com¬ 
mitting these nuisances of what ordinarily would be the constitu¬ 
tional right of trial by jury ? 

Mr. Emery. I do not understand that is done in the way you sug¬ 
gest. Nor do I understand that in labor disputes, to be specific, there 
was any novelty introduced. I only understand that there are new 
sets of facts and new circumstances to which an old principle is 
applied. The only reason more attention is paid to labor disputes in 
these days is there are probably more persons engaged therein who 
violate injunctions. But there is an exceedingly small number of 
controversies in labor disputes in which injunctions are issued com¬ 
pared to the total number issued. There is not one in twenty. 

Mr. Wilson. But does the comparison go with regard to the num¬ 
ber of people affected by those injunctions? Is that in the ratio of 
one in twenty, or is the ratio changed ? 

Mr. Emery. How do you mean, one in twenty ? 

Mr. Wilson. You have just stated that the injunctions issued in 
labor disputes are but one in twenty of the total number of injunctions 
issued. 

Mr. Emery. Less than that. 

Mr. Wilson. What I wanted to get at was whether the number of 
people affected by those injunctions was in the same ratio? 

Mr. Emery. I think if you took the total number of cases in this 
country in which injunctions of every kind or character are issued, the 
number of persons affected who are not in labor organizations, not 
parties to labor disputes, would be far greater. 

Mr. Wilson. Is it not usual in labor-dispute injunctions to make it 
a blanket proposition, that practically includes everybody ? 


CONTEMPTS OF COURT. 


103 


Mr. Emery. No; it is not. If the chairman wants me to, I am per¬ 
fectly willing to engage in a discussion of injunctions in labor disputes. 
But I do not want to be led away from the issue here by a discussion 
of that character. If there is any specific injunction to which there 
is objection, that is thought to be germane to this discussion, I am 
perfectly willing to discuss it. 

Mr. Webb. Aside from the constitutional objection you have to this 
bill, do you not think, as a matter of public policy, it would be well to 
let an impartial tribunal determine the guilt or innocence of a party, 
rather than let the judge, who is really an indirect party, be the trier 
and sentencer of the offender? 

Mr. Emery. If the gentleman will permit me, I think that, so far 
as the form of this bill is concerned, if that were the object to be 
aimed at, I can not understand why the bill is put in the shape in 
which it is, because if, as Mr. Ralston said the other day, and as 
others have said, if the purpose of this measure is to remove from the 
immediate decision of the judge those contempts which may be said to 
be peculiarly personal to him, then this bill fails of its object, because 
it declares to be direct contempts, summarily punishable by him, 
every act that can be said to outrage the personal feeling of the 

a 3 ; and declares to be indirect contempts every act with which he 
t to have as much calmness as a professor of theology discussing 
recondite questions of Bible lore in a sacred seminary. For instance, 
a party spits in the face of the judge; that is a direct contempt. Is 
not that a case in \ hich the judge’s feelings are most thoroughly 
aroused ? 

The Chairman. And that for the reason that the judge is supposed 
to know what happened in the presence of the court. But when some¬ 
thing happens wholly without the presence of the court, a thousand 
miles away, it is to let the accused have the right of trial by jury and 
have the benefit of cross-examination of the witnesses before he is 
put in jail; to have the passing upon the facts by an impartial jury, 
because the judge, from the very nature of that sort of a case, can 
know nothing of the facts himself. 

Mr: Emery. He is compelled, Mr. Chairman, in those cases, to 
proceed by inquiry and to hear the evidence. And if he denies the 
man either a charge in writing or a citation and an opportunity to 
defend himself, tlie Supreme Court of the United States has said 
again and again it will not sustain such a punishment in contempt, 
because on the face of it there has been an arbitrary exercise of power. 
That has been repeatedly held. 

Mr. Graham. But in how many cases—what percentage of the 
cases—could the victim reach the Supreme Court of the United States ? 
Mr. Emery. In what percentage of the cases is there a victim? 

Mr. Graham. I could not answer that. 

Mr. Emery. There is a gratuitous assumption that there must be 
a large number of persons who are arbitrarily punished without 
reason. Who are they? Where are they? What do they charge 
against courts at this time and in this place ? 

Mr. Graham. Speaking of one class of cases, those involving labor 
disputes, there are quite a few that never reach the public for the 
simple reason that the victim—if I may use that term—was unable, 
had not the means whereby to get the attention of the higher courts, 
or the public. I have personally known a number of such cases, where 


104 


CONTEMPTS OF COURT. 


men were taken much more than 100 miles from their homes to the 
court and incarcerated, for violating the terms of a blanket injunction 
in labor disputes. 

Mr. Emery. Yes, sir. 

Mr. Graham. They had not any means, and they had not any 
friends. Their cases never went beyond the local community. 

Mr. Emery. I have tried various times to get a list of cases of 
that kind. There was one filed here by Mr. Gompers some years 
ago, and carefully examined, and made the subject of a very remarka¬ 
ble analysis by Mr. Littlefield in an address in the House in 1908; 
and the whole number of cases at that time, covering the whole 
history of the issuance of injunctions in labor disputes, was, I think, 
only 24, and in those 24 cases the alleged abuses were not specified. 
There was no charge with reference to individuals. There was the 
general charge that judges were abusing this power. That still 
. remains asserted but unproven. 

Mr. Graham. I do not pass on the question of abuse of power at all; 
I can not call your attention to the individual cases. I only know 
that persons, mostly foreigners, perhaps, unable to speak the English 
language at all, were arrested charged with violating ail injunction, 
which was merely published by posting notices of it, or published in 
the newspapers. 

Mr. Graham. Without defense, of course, some of those were 
committed; but the public never heard about it. 

Mr. Emery. Does the gentleman know that the man was com¬ 
mitted without an opportunity to make his defense ? 

Mr. Graham. Not without an opportunity. 

Mr. Emery. With ever}' facility ? 

Mr. Graham. The most essential facility for making a defense is 
dollars and cents; and I take it they were without that facility. 

Mr. Emery. I do not know why we can have one rule, to say an 
injunction shall apply to a man who is worth so much and not to 
a man who is worth so little. The law can not consider, in the 
enforcement of its decrees, the unfortunate social position of its 
violator. 

Mr. Graham. When you come to the cases which you refer to 
the Supreme Court, you omit a large class of cases which, by virtue of 
circumstances, can never reach that court. 

Mr. Em&ry. Let me assume this were the law, that the party was 
entitled to a jury trial. If he did not liave the means to go into 
a court and state his case to a judge, where could he get the means 
to go in and hire a lawyer to represent him before a jury ?' 

Mr. Graham. The custom is for the judge to appoint an attorney 
to represent a defendant who has not the means to employ one. 

Mr. Emery. In an accusation of felony. Who would pay the 
expenses here ? 

Mr. Graham. In my State there is no such expense. The attorney, 
being an officer of the court, is bound to obey the order of the court, 
and when the court says, “You defend Smith in this case/’ the attor¬ 
ney has to do it. 

Mr. Emery. Somebody must pay the expense. The man must 
be arrested and brought somewhere. 

Mr. Graham. That expense the public meets. 


CONTEMPTS OF COURT. 


105 


Mr. Emery. Part of it. 

Mr. Davis. In the Federal court lie may obtain his witnesses in 
forma pauperis. 

Mr. Emery. Will the gentleman stop and consider for a moment 
the practical effect of enforcing contempts by jury trial in the Debs 
case—paralyzing the traffic of this country ? What would be the 
practical effect of it, quite apart from the legal questions involved ? 

Mr. Graham. Under our form of law, I take it, the most essential 
thing is that each citizen is guaranteed by law his personal rights. 

Mr. Emery. Yes, sir. 

Mr. Graham. Would it not be better to have traffic stopped en¬ 
tirely than have a citizen unjustly imprisoned? 

Mr. Emery. Yes, sir; but it is equally true that all the agitation in 
the country and all the excitement incidental to it can not vindicate 
a mob destroying property, or justify stripping the courts of their 
protective powers because the public has rights. There are rights 
on both sides. 

Mr. Littleton. I suppose you would be willing, Mr. Emery, if the 
law provided that in those cases where the violation of an injunc¬ 
tion amounted to an offense against the property of a person, such as 
is known commonly as offenses, in those particular cases you would 
be willing, would you not, that the defendant should have a trial by 

jufy • 

Mr. Emery. I will give you a case, Mr. Littleton, right here. Here 
is the case of United States v. Anonymous, 21 Federal Reporter, 761. 
In that case an officer of the court went out to serve a process, and 
the man on whom he was about to serve it knocked him down and 
stuffed the process and the seal down his throat. Was that a criminal 
act ? 

Mr. Littleton. Yes. 

Mr. Emery. Should that man have had a trial by jury in that case, 
or ought the court then and there to have vindicated its authority in 
a summary proceeding? As far as any criminal charge is concerned, 
he would have his trial, but separate and apart from the crime which 
he committed when he did that act to that individual, there was also 
the offense which he committed against the court’s officers in this 
attempt to obstruct justice. 

Mr. Davis. Obstruction of justice is an express crime by statute. 

Mr. Emery. There are very few offenses committed in the court, 
if you want to consider the court as an individual, that can not be 
punished by prosecution for assault and battery. But if every judge 
had to climb down and prosecute every offender for slapping him in 
the face we would soon lose respect for the courts. 

Mr. Littleton. Take the case you put. The constable goes out 
to serve a man, and the man knocks him down and beats him and 
stuffs the seal of the court down his throat. Of course, that is a 
distinct crime. 

Mr. Emery. Yes. 

Mr. Littleton. It may be also an affront to or a contempt of 
the court. But it is a crime, an assault and battery, and if it had 
gone far enough, and the seal had been big enough, it would have 
been murder. 

Mr. Emery. Yes. 


106 


CONTEMPTS OF COURT. 


Mr. Littleton. Then, of course, the man could have been com¬ 
mitted for life for murder by a judge defending his inherent powers, 
could he ? 

Mr. Emery. No, sir; that is not contended for a moment. The 
distinction between the criminal proceeding essential to punish any 
crime of any character committed in the course of a contempt and 
the power of the court and the duty of the court to protect its own 
authority immediately are just as different as daylight and darkness. 

Mr. Littleton. Nothing should be done—in my opinion, at all 
events—to cripple the power of the court to see that its orders are 
carried out, because that means absolute disorder. On the other hand 
where, in carrying out the powers of the courts, there arises an act 
which is against the criminal law, is it not natural and proper that 
the person charged with the offense should seek to have that offense 
tried as by due process of law, by a court and a jury, instead of hav¬ 
ing that offense covered up in the guise of an injunctive process? It 
may be necessary that the court shall then and there vindicate its 
authority immediately, in order that other witnesses who may be 
disorderly, turbulent, resistent, or rebellious shall be immediately 
checked. That is an obvious thing. 

The Chairman. Mr. Emery, do ^011 think the act of March 2, 1831, 
was designed to meet the view just expressed by Mr. Littleton? For 
you know that in section 1 the power of the Federal courts of the 
United States to issue attachments and inflict summary punishment 
for contempts of court— 

Shall not be construed to extend to any cases except of misbehavior of any person 
or persons in the presence of said court, or so near thereto' as to obstruct the adminis¬ 
tration of justice. The misbehavior of any of the officers of said courts, in their 
official transactions, and the disobedience or resistance by any such officer, or by any 
party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, 
or command of the said courts. 

Then section 2 of that act, carrying out further the idea which 
Mr. Littleton has expressed, provides: 

Sec. 2. And be it further enacted , That if any person or persons shall, corruptly or 
by threats or force, endeavor to influence, intimidate, or impede any juror, witness, 
or officer in any court of the United States in the discharge of his duty, or shall, 
corruptly or by threats or force, obstruct or impede, or endeavor to obstruct or 
impede, the due administration of justice therein, every person or persons so offend¬ 
ing shall be liable to prosecution therefor, by indictment, and shall, on conviction 
thereof, be punished by fine not exceeding five hundred dollars or by imprisonment 
not exceeding three months, or both, according to the nature and aggravation of the 
offense. 

Mr. Emery. Yes, sir. 

The Chairman. Did not Congress have that idea in mind away back 
in 1831, to define what contempts were, and then to take certain 
offenses that theretofore had been held to be contempts and designate 
them as criminal offenses subject to indictment and provide a jury 
trial? 

Mr. Emery. Whatever may have been their intention with regard 
to defining contempts, and also providing punishments, it was never 
their intent to provide an exclusive punishment by indictment. They 
preserved to the court the right to always punish the same offenses as 
contempts, and I will call your honor’s attention to ex parte Terry, 


CONTEMPTS OF COURT. 107 

in one hundred and twenty-eighth United States, where, in a com¬ 
ment on section 725, the Supreme Court says: 

Nor can there be any dispute as to the power of a circuit court of the United States 
to punish contempts of its authority. In United States v. Hudson (11 U. S., 7 Cranch, 
34) it was held that the courts of the United States, from the very nature of their 
institution, possessed the power to fine for contempt, imprison for contumacy, enforce 
the observance of order, etc. 

So that, as you will observe in reading the cases, the court repeat¬ 
edly refers to that statute of Congress on the one hand as limiting 
this power to punish for contempt, but always insists at the same time 
and generally in the same paragraph on the power of the court to 
make the investigation as to the fact of the commission of the con¬ 
tempt and to punish it apart from any legislation. The Supreme 
Court of the United States has never been called on to consider a 
statute of Congress that would take that power away, or so limit it 
as to impair or destroy the judicial power. 

As to political precedents for this measure I called the attention of 
the committee to the fact that the Hill bill never undertook, as this 
bill does, to give a contemnor the right of trial by jury as a matter of 
right. It left it in the discretion of the chancellor, if you please, or 
in the discretion of the judge, to allow a jury or refuse it. 

The Chairman. If the jury trial was once accorded, then all the 
rights incident to a jury trial were observed and accorded to him, 
the matter of appeal, and so on ? 

Mr. Emery. That maj^ be true, but he could not get it in the first 
instance as a matter of right. 

The Chairman. Exactly. 

Mr. Emery. Furthermore, as to the definition of direct contempts 
which is placed in this bill, the majority of the Committee of the 
House, when reporting on the Hill bill, would not even go as far as to 
give a discretionary trial or to permit the jury to determine the 
guilt or innocence of the defendant on the contempt charge, as is 
provided in this bill. They proposed that the court should submit 
certain interrogatories to the jury and the jury was to answer those 
interrogatories, and then the court was to make its finding on that 
basis. 

Mr. Sterling. You said awhile ago it was a mixed question of law 
and fact, did you not ? 

Mr. Emery. Yes, sir. 

Mr. Sterling. The Hill bill preserves that distinction, does it not ? 

Mr. Emery. Yes, sir. 

Mr. Sterling. It simply provides that the jury shall find whether 
or not certain acts were committed ? 

Mr. Emery. Yes, sir. 

Mr. Sterling. And refers it to the court to determine whether 
that constituted a contempt ? 

Mr. Emery. No. That is the Ray bill. It provided that certain 
interrogatories should be submitted and the jury was to answer. 
Finally, in the minority report, signed by David A. De Armond, 
D. B. Culberson, W. L. Terry, and J. W. Bailey, make specific objec¬ 
tion to one of the important sections of this bill. 

The language of this bill, including as direct contempts failure to 
obey subpoena as a witness, or to answer a summons as a juror, is 


108 


CONTEMPTS OF COURT. 


verbally identical with the language of the Ray bill, and of this the 
Democratic minority of the committee said: 

The committee have included in the classification of what are called “direct con¬ 
tempts” failure or refusal to obey a subpoena for witnesses or a summons for jurors. 
If such failure or refusal amounts to a “direct” contempt, it is not easy to perceive 
how or why a failure or refusal to obey any other lawful command of a court, whether 
affirmative or negative, is an indirect and not a direct contempt of court. 

The Chairman. That is from the Ray report you read ? 

Mr. Emery. No; that is from the views of the minority, on that 
report at page 9, where the minority is criticizing the inclusion of that 
language in the bill. 

The Chairman. In that same connection I call your attention to 
what Judge De Armond further says: 

The object of the Senate bill is to afford persons charged with indirect contempts a 
trial by jury, as in criminal cases. The effect of the committee substitute, if enacted 
into law, would be to give the accused the form of a jury trial, with the substance 
withdrawn. For, instead of accepting the plan of the real jury trial, as embodied in 
the Senate bill, the committee provide for the submission to the jury of interrogatories, 
prepared by the court, and to be answered by the jury in writing. Upon the answers 
the court will determine the guilt or innocence of the accused. About the question 
of guilt or innocence the jury, according to the committee, shall have nothing to say. 
That shall be determined by the court, which is to continue to be not only judge 
and jury, but accusers as well. 

Believing that the citizen should be better protected in his rights in proceedings for 
alleged contempts of court, and believing also that additional protection for him is to 
be found in real and not mock jury trials, we oppose the recommendation of the 
committee, and favor the passage of the Senate bill. For while that bill might be 
improved by amendment in furtherance of its object and not against it, we are of the 
opinion that unless the House pass the Senate bill as it is there will be no legislation 
upon the subject by the present Congress. 

I read that in justice to Judge De Armond and others who signed that 
minorit}^ view. It ought to be read into the hearing in connection 
with your statement. 

Mr. Emery. Yes; but what I am reading from Judge De Armond, 
Mr. Chairman, is very much to the credit of Judge De Armond. 

The Chairman. I think this is, too. 

Mr. Emery. Judge De Armond and his associates criticized the 
inclusion in direct contempts to be summarily punished the failure 
to obey a subpoena, or to be summoned as a juror, and he said that 
if that could be made a direct contempt he did not see why anything 
could not be made a direct contempt. 

The Chairman. Would you think this bill unobjectionable if that 
were stricken out ? That could be easily stricken out. 

Mr. Emery. That is only one of many objections that I am making. 

The Chairman. Would it improve it to strike it out ? 

Mr. Emery. It would remove at least that objection. 

The Chairman. I am asking you whether, in your opinion, you 
think it would improve the bill if we should amend it by striking 
that out ? 

Mr. Emery. I think it very much improves the distinction between 
direct and indirect contempts. Judge De Armond says: 

About this definition (the one in the Hill bill') is a degree of accuracy which must 
commend it to the favorable consideration of lawyers, while the committee’s enlarge¬ 
ment of this definition into that which they offer as constituting direct contempts 
may, perhaps, be regarded by legal lexicographers as a novelty. 

1 wanted to say just one word, in conclusion, on the practical side 
of the question. I join in what Judge Davenport said of another 


CONTEMPTS OF COURT. 


109 


feature of the bill; that is, that it includes as direct contempts, and 
punishes them, things that are done beyond the senses of the court, 
and gives arbitrary powers of summary hearing without written accu¬ 
sation, which seems to be condemned by the case of Ex parte Terr}*, 
In re Bradley, In re Savin, and Ex parte Robinson. 

There is another thing that Mr. Littleton has referred to, and that 
is the most powerful objection, it seems to me, of a practical nature 
that can be made to this bill. It brings into being a constitutional 
objection of another kind, and if it were not a constitutional objec¬ 
tion, it would certainly be one of some practical weight and force 
which this great committee of lawyers would surely consider. That 
is, you define as indirect contempts every form of disobedience of 
a lawful order or decree that a court can make; therefore, every 
suitor seeking a remedy by injunction and securing one has only 
secured the right to indulge in further litigation if there be persons 
resisting the order of the court. A man has a patent which is 
infringed, and secures an injunction enjoining another from manu¬ 
facturing that patented article. A trust fund is being improperly 
appropriated or misused, as in the Cartwright case, and when that 
injunctive order of the court is disobeyed, the man may go on, while 
his contempt is being determined by a jury. The judge’s power to 
prevent the dissipation of the fund is ended. You must have a jury 
trial, which takes time, subject to all the delays incident thereto, and 
during that time the fund which may be the subject of injunctive 
restraint is in the hands of this individual to use as he sees fit. The 
power of a court to summarily enforce an injunction given in favor 
of a suitor is taken from it, and when the injunction is secured, the 
suitor can enforce it against disobedient individuals only before a 
jury, inviting further litigation and endless delay by appeal. Of what 
practical value is a restraining order under such conditions ? In the 
summary proceedings that now exist there is certainly sufficient oppor¬ 
tunity for delay. The Gompers case itself is evidence of the delay 
that can be had on mere questions of law. It is now 6 years old, and 
unsettled. 

There is also the individual’s constitutional right to his remedy 
here. If a man is entitled to due process of law in this matter, he is 
entitled in an equity proceeding to have his rights determined in an 
equitable way, and to be enforced in accordance with the principles 
handed down from time immemorial as a court of equity enforces its 
decrees. He is not to go forth remediless, with a bladeless weapon, 
to have good citizens obey the order of the court, and those most 
inclined to dispute it, determined to destroy anything that may be 
the subject matter of it, and most tempted to do so—to have rights 
enforced against such individuals only after proceedings before a 
jury, and after all the various appeals that may be taken in a criminal 
proceeding. It would be, indeed, Mr. Chairman, a most remarkable 
departure from the immemorial proceedings with which English and 
American law have familiarized us. If you take from a court its right 
to summarily punish a contempt and enforce its decrees and leave the 
ascertainment of the fact as to whether or not a contempt has been 
committed to the determination of a jury, you leave the enforcement 
of all the decrees of a court in the last analysis to 12 men and not to 
one and destroy that power which has attached itself to our courts 
as of the very essence of being until, as a great judge of the United 


110 


CONTEMPTS OF COURT. 


States has said, you can no more “ think of a court without the ability 
to itself enforce its decrees than you can think of a court without a 
judge. ” I thank you, gentlemen. 

Mr. Howland. Mr. Emery, in the proceedings now being instituted 
against the so-called trusts, would not the arm of the Government be 
paralyzed if this bill were the law now ? 

Mr. Emery. I can not imagine how you could dissolve the Tobacco 
Company or the Steel Corporation if an injunction were secured 
against it; that is, dissolve it with the expedition with which it has 
been dissolved since the entrance of the decree of the Supreme Court— 
if each director or each party named therein were entitled to a trial 
by jury, with the possibility that some would be convicted and some 
would not, and as to others the jury might disagree;and as some were 
convicted they might elect new directors while the appeals of those 
who were found guilty of contempt proceeded. 

The Chairman. We thank you very much, Mr. Emery. 

(Thereupon, at 12.45 o’clock p. m., the committee adjurned.) 


Appendix A. 


Memorandum Submitted to the Judiciary Committee of the House of Repre¬ 
sentatives by Daniel Davenport, of Bridgeport, Conn., in Opposition to 

H. R. 13578, it Being a Bill to Define and Punish Contempts of Court. 

This bill is an attempt to prescribe by congressional enactment the sole method 
which all the Federal judges and courts, except the Supreme Court, must pursue in 
proceeding to punish persons for contempt of their authority. It is one of several bills 
now pending before this committee having that object in view. 

It is to be noted at the very outset that it throws the whole matter into hopeless con¬ 
fusion and uncertainty by including in its enumeration of the various acts which it 
calls “direct contempts” every contempt “committed so near the court as to obstruct 
the administration of justice,” and by failing, at the same time, to specify what, if any, 
the “other contempts” are which compose the class of so-called “indirect contempts” 
created by the bill. Since nearly, if not quite, every contempt, wherever committed, 
operates to obstruct the administration of justice (otherwise it could not be a legal con¬ 
tempt of court) and is therefore of necessity near enough to the presence of the court 
to do so, it would seem that the courts would be obliged to hold that every contempt 
which obstructs the administration of justice is included under this head. And this 
construction would seem to be also forced upon the courts by the further fact that many 
instances of what have always been called constructive contempts, which are far lest 
serious in their effect upon the conduct of the business of the court than those not speci¬ 
fied in the bill are expressly included in the class of “direct contempts.” What 
sense would there be in the courts holding, for instance, that the bill intended that a 
marshal, a witness, or a juror must be summarily proceeded against for failing to obey the 
orders of the court, but that a lot of conspirators, who by minder, imprisonment, intim¬ 
idation or bribery of the marshal, the witness, or the juror had perhaps wholly stopped 
the business of the court, could not be so proceeded against? On account of this uncer¬ 
tainty in the bill, how is any Federal court to know what course to pursue under its 
provision in proceeding to punish any given contempt? The Supreme Court in con¬ 
struing Section 725 of Revised Statutes, expressly declined to express an opinion on 
the question whether every contempt, wherever committed, which obstructs the admin¬ 
istration of justice does not fall within the words, “so near thereto as to obstruct the 
administration of justice.” 

“Whether the attempt to influence the conduct of the trial-term juror McGarvin 
was or was not, within the meaning of the statute, so near to the court ‘as to obstruct 
the administration of justice ’ however distant from the court building may have been 
the place where the appellant met him is a question upon which it is not necessary 
to express an opinion.” (Cuddy, Petitioner, 131 U. S., 286, 287.) 

Passing by these suggestions, however, the bill seeks to accomplish its purpose 
by dividing all contempts of court.into which it calls “direct contempts” and “in¬ 
direct contempts.” In doing this, it disregards entirely the classification heretofore, 
time out of mind, employed by the courts into contempts in the face of the court and 
those committed out of its presence, upon which distinction there has always hung 
the most vital difference in the rights of the accused as to the mode of his trial. It 
also completely ignores the well-settled and vital distinction between what are known 
to the courts as “civil” and “criminal” contempts. 

In its classification, under the head of “direct contempts,” it places not only all 
contempts committed in the face of the court—that is, committed within the scope of 
the judges’ senses—but also all others committed outside of such presence, if so near 
as to obstruct the administration of justice, and all contempts committed by an 
officer of the court through any misbehavior in his official transactions, one form of 
which misbehavior is particularly pointed out and mentioned in the bill, to wit, 
disobedience of the lawful process or orders of the court or judge. In this class is also 
placed contempts committed by witnesses and jurors in failing to obey lawful sub¬ 
poenas and summons. 

Whatever other contempts there may be not falling within the scope of the class 
called “direct contempts” are thrown together in another class of so-called “indirect 
contempts.” 


Ill 


112 


CONTEMPTS OF COURT. 


All the so-called “direct contempts” are to be proceeded against “summarily,” 
whatever that may mean, without written accusation against the accused. Apparently 
the attempt here is to authorize and require the same mode of procedure in all the cases 
comprised within this class as is now employed in cases of contempts in the face of 
the court. If the accused is found guilty the judgment is to be entered of record, 
which must set forth the conduct constituting the contempt, the defense or excuse 
offered by him, and the sentence imposed. No appeal or other review is provided. 

From all this appears how radical is the departure in the bill from what has pre¬ 
vailed hitherto in the way of the classification of contempts and the procedure to 
punish them. 

“A contempt of court is either direct or constructive. Direct when there is an open 
insult in the face of the court to the person of the judge while presiding, or a resistance 
of its power in his presence; constructive when an act is done, not in the presence of, 
but at a distance from, the court, in disobedience of an order or to the process of the 
court tending to embarrass, interrupt, obstruct, or prevent the administration of jus¬ 
tice.” (Ex parte Wright, 55 Ind., 504; Ex parte Terry, 128 U. S., 309.) 

So far as this class of so-called “direct contempts” provided for in this bill is con¬ 
cerned, it needs little authority to show that, with the exception of those contempts 
which are committed “directly under the eye and in the personal view of the court or 
judge,” a judgment and sentence resulting from this new mode of procedure would 
be void as a deprivation of the liberty or property of the accused without due process 
of law, and that the mode of procedure directed by the bill in this respect w r ould be 
unconstitutional on that account, and the provisions of the bill relating thereto would 
be void. No more flagrant violation of the fundamental rights of the citizen could be 
imagined. 

“While an offender may lx 1 instantly punished for a direct contempt in the face of 
the court by arrest and fine or imprisonment, without other proof or examination than 
the knowledge of the judge, gathered from his senses, hi case of a constructive con¬ 
tempt, a prima facie case must be made against the alleged offender either by an affi¬ 
davit, by the official return of some officer, or by other legitimate evidence in a way 
that can tye made part of the record. In such case a rule nisi should be entered againbt 
the offender before the writ should issue, unless delay be dangerous to the injured 
party, but in no case of constructive contempt can either the rule or the writ go until 
the facts are put upon the record in such manner that they may be demurred to, moved 
against, or controverted.” (Ex parte Wright, 65 Ind., 505.) 

“It is undoubtedly a general rule in all actions, w r hether prosecuted by private 
parties or by the Government-- that is, in civil and criminal cases—that a sentence 
pronounced against a party without hearing him or giving him an opportunity to be 
heard is not a judicial determination of his rights, and is not entitled to respect in 
any other tribunal. But there is another rule, of almost immemorial antiquity and 
universally acknowledged, which is vital to personal liberty and to the preservation 
of organized society, because upon its recognition and enforcement depend the exist¬ 
ence and authority of the tribunals established to protect the rights of the citizens, 
whether of life, liberty, or property, and whether assailed by the illegal acts of the 
Government or by the lawlessness or violence of individuals. It has relation to the 
class of contempts which, being committed in the face of the court, imply a purpose 
to destroy or impair its authority, to obstruct the transaction of its business, or to 
insult or intimidate those charged with the duty of administering the law. Black- 
stone thus states the rule: ‘If the contempt be committed in the face of the court, the 
offender may be instantly apprehended and imprisoned, at the discretion of the 
judges, without any further proof or examination. But in matters that arise at a 
distance, and of which the court can not have so perfect a knowledge, unless by the 
confession of the party or the testimony of others, if the judges, upon affidavit, see 
sufficient ground to suspect that a contempt has been committed, they either make a 
rule on the suspected party to show cause why an attachment should not issue against 
him; or, in very flagrant instances of contempt, the attachment issues in the first 
instance, as it also does if no sufficient reason is showm to discharge, and thereupon 
the court confirms and makes absolute the original rules.’ ” (Ex parte Terry, 128 U. 
S., 307.) 

“Due process of law as used in the United States Constitution, amendment five, 
providing that no person shall be deprived of life, liberty, or property without due 
process of law, means that law of the land which derives its authority from the legis¬ 
lative power conferred on Congress by the Constitution of the United States within 
the limits therein prescribed and interpreted according to the principles of the com¬ 
mon law.” (In re Kemmler, 136 U. S., 436.) 

“Due process of law means a course of legal proceedings which secures to every 
person a judicial trial before he can be deprived of life, liberty, or property.” (Peerce 
v. Kitzmeller, 19 W. Va., 564, 565.) 


CONTEMPTS OF COURT. 


113 


\\ hen life and liberty are in question, there must, in every instance, be judicial 
proceedings, and that requirement implies an accusation, a hearing before an impar¬ 
tial tribunal with proper jurisdiction, and a conviction and judgment before punish¬ 
ment can be inflicted.” (Cooley Const. Lim., p. 224.) 

Let us now turn to the class oi so-called “indirect contempts” created by the bill. 
If it shall become a law, whatever contempts the court shall thereafter hold not to be 
embraced in the other class would fall within this class. 

The first thing which arrests attention is that “civil” and so-called “criminal” 
contempts are alike within its scope, whether they be contempts of either the courts 
of law or courts of equity, and that in regard to both civil and so-called criminal con¬ 
tempts in both courts a jury trial of the alleged contempts must be had, if demanded by 
the accused. 

There is a general reason why this provision would be unconstitutional and void 
both as to civil and criminal contempts of either the Federal law or equity courts, 
and a special reason why it would be unconstitutional and void both as to the civil 
and criminal contempts of the Federal courts of equity. 

This last-mentioned reason grows out of the constitutional incapacity of Congress 
to compel the issues of fact or law in equity cases to be passed upon by a jury. The 
first reason grows out of the constitutional incapacity of Congress to impair the inde¬ 
pendence of the judiciary by depriving it of the power to maintain its dignity and 
enforce its decrees. 

On the subject of the constitutional incapacity of the legislature to compel courts 
of equity to employ the instrumentality of the jury to decide questions of fact, I will 
quote a few cases. In Callahan v. Judd (23 Wis., 343) the court said: 

“I think the act invalid, and my reasons are briefly as follows: The power to decide 
questions of fact in equity cases belonged to the chancellor just as much as the power 
to decide questions of law. It was an inherent part and one of the constituent elements 
of equitable jurisdiction. If, therefore, it shall appear that by the constitution the 
equitable jurisdiction existing in this State is vested in the courts, I think it will 
necessarily follow that it would.not be competent for the legislature to divest him of 
any part of it and confer it upon juries. If they can do so as to a part, I do not see 
why they may not as to the whole. If they can say that in an equity case no court 
shall render any judgment except upon the verdict of a jury upon questions of fact, 
I can see no reason why they may not say that a jury shall also be allowed to decide 
questions of law. 

“But the constitution (sec. 2, art. 7) provides that ‘the judicial power of this State, 
both as to matters of law and equity, shall be vested in a supreme court, circuit courts, 
courts of probate, and justices of the peace. The legislature may also vest such 
jurisdiction as shall be deemed necessary in municipal courts.’ * * * 

“In order to determine the meaning of the phrase ‘judicial power as to matters of 
law and equity,’ it is only necessary to refer to the system of jurisprudence estab¬ 
lished in this country and derived from England, in which the court had certain well- 
defined powers in those two classes of cases. In actions of law they had the power of 
determining questions of law, and were required to submit questions of fact to a jury. 
When the constitution, therefore, vested in certain courts judicial power in matters at 
law, this would be construed as vesting such power as the court, under the English and 
American systems of jurisprudence, had always exercised in that class of actions. It 
would not import that they were to decide questions of fact, because such was not the 
judicial power in such actions. And the constitution does not attempt to define 
judicial power in these matters, but speaks of it as a thing existing and understood. 
But, to remove all doubt in actions at law, the right of a trial by jury is expressly pre¬ 
served by another provision. 

“But, as already stated, the power of a court of chancery to determine questions of 
fact as well as of law was equally well established and understood. And when the 
constitution vested in certain courts judicial power as to matters in equity, it clothed 
them with this power as one of the established elements of judicial power in equity, 
so that the legislature can not withdraw it and confer it upon juries. * * * 

“The plain object of this provision was to enable the legislature to distribute the 
jurisdiction in both matters at law and in equity as between the circuit courts and the 
other courts in the State, giving the circuit courts such original jurisdiction and such 
appellate jurisdiction as it might see fit. But the jurisdiction there intended was 
jurisdiction of the suit. 

“It may well be that the legislature may deprive the circuit courts of original juris¬ 
diction in actions for the foreclosure of mortgages. It is unnecessary to determine 
whether it could or not. But it is quite certain that this clause contains no authority 
for it, while leaving those courts jurisdiction of this class of action, to attempt to 

20502—11-8 



114 


CONTEMPTS OF COURT. 


withdraw from them an acknowledged part of the judicial power and vest it in the 
jury.” 

And in the case of Brown v. Kalamazoo Circuit Judge (75 Mich., p. 277) the court 
said: 

“As Michigan had a long territorial experience, its judicial system naturally became 
fashioned in close analogy to that of the United States, and so recognized and per¬ 
petuated in their essentials the classification of legal and equitable rights as involving 
the necessity of separate administrations in important particulars. The Constitution 
of the United States recognizes the division of ordinary civil jurisprudence into cases 
at law and cases in equity, and it has been held by the Supreme Court of the United 
States that this recognition puts it beyond the power of Congress to make any serious 
change in that classification. In Carpentier v. Montgomery, 13 Wall. 480, the impor¬ 
tance of the distinction and the impracticability of disregarding it was somewhat 
explained in such a case as is now under consideration, as in several previous cases 
it had been held that the policy enjoined by Congress, of securing as far as possible 
uniformity of practice between the State and the United States courts, could not be 
carried so far as to confound the legal and equitable jurisdictions. * * * 

“This leads to the inquiry whether it is competent for legislation to bring about any 
such radical change as is here attempted. We think it is not. The decisions of the 
United States Supreme Court before referred to do not bind State practice, but they 
nevertheless to some extent indicate the real difficulty. That tribunal did not decide 
that under the United States Constitution there could be no change in equitable 
procedure, because the whole body of chancery practice has been repeatedly amended 
and simplified by that court. Their rulings mean neither more nor less than that 
there are various kinds of interests and controversies which can not be left without 
equitable disposal without either destroying them or impairing their values. 

“ It is within the power of a legislature to change the formalities of legal procedure, 
but it is not competent to make such changes as to impair the enforcement of rights. 

• In rude times, when there is no business, and no variety of property rights, very 
simple remedies are sufficient. But where the ordinary remedies have become 
inadequate to deal with more extended or peculiar interests, such as multiply in all 
civilized countries, different methods and different tribunals become necessary. 
The universally recognized basis of equitable jurisprudence, found in statutes and 
constitutions, as well as in the reports and text writers, is the inadequacy of the com¬ 
mon law to deal with these subjects. A principal basis of that inadequacy was the 
nature of the tribunal passing on the facts. In common-law cases issues of fact and 
law can be readily separated; but in the great majority of equity proceedings it is 
impossible to make any such separation. 

“The function of judges in equity cases in dealing with them is as well settled a 
part of the judicial power and as necessary to its administration as the functions of 
juries in common-law cases. Our institutions are framed to protect all rights. When 
they vest judicial power, they do so in accordance with all its essentials, and when they 
vest it in any court, they vest it as efficient for the protection of rights and not subject 
to be distorted or made inadequate. The right to have equity controversies dealt 
with by equitable methods is as sacred as the right of trial by jury. Whatever may be 
the machinery for gathering testimony or enforcing decrees, the facts of the law must 
be decided together; and when a chancellor desires to have the aid of a jury to find 
out how the facts appear to such unprofessional men, it can only be done by submitting 
single issues of pure facts, and they can not foreclose him in his conclusion unless they 
convince his judgment. 

“Theory amounts to nothing in the history of jurisprudence. The system of chan¬ 
cery jurisprudence has been developed as carefully and as judiciously as any part of 
the legal system, and the judicial power includes it, and must always include it. 
Any change which transfers the power that belongs to a judge to a jury, or to any 
other person or body, is as plain a violation of the constitution as one which should 
give the courts executive or legislative power vested elsewhere. The cognizance of 
equitable questions belongs to the judiciary as a part of the judicial power, and under 
our constitution must remain vested where it always has been vested heretofore.” 

On the subject of the constitutional incapacity of Congress to impair the inde¬ 
pendence of the judiciary by depriving it of the power to maintain its dignity and 
enforce its decrees, by compelling it to submit the decision of the facts to the determi¬ 
nation of a jury in contempt cases, I will also quote a few cases. 

In Gompers v. Bucks Stove & Range Co. (221 U. S., 450) the court settled this mat¬ 
ter by declaring: 

“For while it is sparingly to be used, yet the power of courts to punish for contempt 
is a necessary and integral part of the independence of the judiciary, and is absolutely 


CONTEMPTS OF COURT. 


115 


essential to the performance of the duties imposed on them by law. Without it they 
ar ?< mere k° ar d s of arbitration whose judgments and decrees would be only advisory. 

“If a party can make himself a judge of- the validity of orders which have been 
issued, and by his own act of disobedience set them aside, then are the courts impotent, 
and what the Constitution now fittingly calls the ‘judicial power of the United States * 
would be a mere mockery. 

“This power ‘has been uniformly held to be necessary to the protection of the court 
from insults and oppressions while in the ordinary exercise of its duties, and to enable 
it to enforce its judgments and orders necessary to the due administration of law and 
the protection of the rights of suitors.’ (Bessette v. Conkey, 194 U. S., 324, 333.) 

“There has been general recognition of the fact that the courts are clothed with 
this power, and must be authorized to exercise it without referring the issues of fact or 
law to another tribunal or to a jury in the same tribunal. For if there was no such 
authority in the first instance there would be no power to enforce its orders if they were 
disregarded in such independent investigation. Without authority to act promptly 
and independently, the courts could not administer public justice or enforce the rights 
of private litigants.” (Bessette v. Conkey, 194 U. S., 337.) 

In Smith v. Speed (11 Okla., 95) the Supreme Court of Oklahoma declared unconsti¬ 
tutional an act of the legislature which required the court in cases of indirect contempt 
to submit the matter to a jury. In the course of its opinion, at page 104, it said: 

“If it now should be found that the judge had no power to enforce his order at all 
or to punish for contempt, and that the court had no power to punish beyond a fine of 
$50 and imprisonment not exceeding a longer period than 10 days in the county jail, 
and that a change of judge may be had and a change of venue from the county, and 
that a trial by jury may be had to determine whether the recalcitrant party is in 
contempt at all or not, it will be admitted by the bar, acquainted with the law’s 
delays, that the power to punish for contempt, either direct or indirect, being destroyed 
in the judge, will be to a great extent destroyed also in the court and rendered valueless. 

“If the contention now sought for by the plaintiff in error should be sustained, it 
would go to the extent that the court, in equitable proceedings, after a full hearing 
and a final determination and judgment upon the merits, is without the power to 
enforce its judgments by the imposition of a pecuniary penalty or imprisonment, and 
that in the endeavor to enforce its judgment by proceedings in contempt it would be 
subject to have its final judgment brought into review in the contempt proceedings 
upon a change of judge, or of venue, to a completely new jurisdiction and to a trial by 
jury, in which the merits of the final order, which has been made by the court, in the 
proceeding, should again be reviewed, including the question whether there was any 
merit, right, or authority of the court in the equitable proceedings in which the judg¬ 
ment had been rendered or the order made, and the equitable jurisdiction of the dis¬ 
trict court upon matters finally determined would thus be subject to be again brought 
in question by another judge in another venue and by a jury, a thing unheard of in 
the chancery jurisdiction. If such a state of things could be, it could but result in 
the degradation of courts, and to make them truly the subjects of contempt. ” 

In the Debs case (158 U. S., 594) Mr. Justice Brewer, in giving the opinion of the 
court, said: 

“The power of a court to make an order carries with it their equal power to punish 
for a disobedience of that order, and the inquiry as to the question of disobedience has 
been from time immemorial the special function of the court. This is no technical 
rule. In order that the court may compel obedience to its orders, it must have the 
right to inquire whether there has been any disobedience thereof. To submit the 
question of disobedience to another tribunal, be it jury or another court, will operate 
to deprive the proceeding of half its efficiency. ” 

Aqd the Supreme Court in deciding the Debs case adopted the declaration made in 
Watson v. Williams (36 Miss., 331, 341\ in which it was declared that— 

“The power to fine and imprison for contempt, from the earliest history of juris¬ 
prudence, has been regarded as a necessary incident and attribute of a court, without 
which it could no more exist than without a judge. It is a power inherent in all courts 
of record and coexisting with them by the wise provisions of the common law. A 
court without the power effectually to protect itself against the assaults of the lawless, 
or to enforce its orders, judgments, or decrees against the recusant parties before it. 
would be a disgrace to the legislation and a stigma upon the age which invented it. 

In the light of th< foregoing observations, principles, and decisions it is clear that 
H. R. 13578 is obnoxious to the Constitution and that it ought not to be passed, and 
since D. R. 1617, II. R. 1722, H. R. 1720, H. R. 4422, U. R. 4688, H. R. 5605, II. R. 
11485, H. R. 9, and IT. R. 9435 are all bills to provide for a trial by jury in proceedings 
for the punishment of contempts, they are for the same reason unconstitutional and 
ought not to be passed. 


116 


CONTEMPTS OF COURT. 


Appendix B. 

[Re bill No. 13578, United States House of Representatives.] 

Memorandum Submitted by Horace Pettit, of Philadelphia, in Opposition 

to the Bill. 

To the honorable Judiciary Committee: 

The following brief memorandum is submitted pursuant to a privilege given by 
Hon. Henry D. Clayton, chairman of the committee, at the conclusion of my remarks 
before the committee at the public hearing on Thursday, December 7, 1911. 

A very full consideration of the decisions relative to the contention that the bill as 
drafted could not be sustained in the courts, if passed, was presented by Daniel 
Davenport, Esq., in his remarks to the committee on the same date, with the privilege 
of filing a fuller memorandum of authorities if desired, and in view of this fact the 
present memorandum will not discuss the general subject in this manner nor burden 
the committee with a repetition of the consideration of the numerous cases bearing 
upon the question. 

It is desired merely here to briefly point out the effect which such a bill would have 
upon injunctions in equity, in depriving the court of its inherent right to punish 
violators of its decrees without referring the issues to a jury or to another tribunal. 

under the present laws the power to punish restricted, as construed by 

the courts. 

It is desired to point out preliminarily many difficulties which have presented them¬ 
selves in some of the courts, even under the law as it at present exists, in view of the 
decision of the Supreme Court of the United States in Gompers v. Bucks Stove & 
Range Co. (221 U. S. Rep., p. 492, etc.), in punishing violators of the decree of the 
courts in equity suits. Instances of this character have arisen recently in a number of 
cases in the United States Circuit Court for the Southern District of New York, where 
infringers who have been enjoined by decree of the court from violating patent rights 
have continued the infringement, notwithstanding the injunction. If such difficul¬ 
ties exist under the law relative to contempt as it stands to-day, much greater diffi¬ 
culties attending the enforcement of the decrees of court will be encountered should 
the bill now before your honorable committee, No. 13578, be passed. The difficulties 
under the present law, by virtue of the recent decisions of the circuit court for the 
southern district of New York, may possibly be overcome by a different method of 
procedure under the present law, or the opinions referred to may be reversed or 
modified. 

I would, therefore, suggest that the present law remain unchanged, as doubtless 
efficient remedy can be had under the law as it exists to-day. 

The United States Circuit Court for the Southern District of New York has construed 
the decision in the Gompers case in effect substantially as follows: 

(1) That in cases of violation of a prohibitive injunction, the defendant in attach¬ 
ment proceedings in that cause can not be imprisoned; 

(2) That in cases of a prohibitive injunction, a defendant violating the decree can 
only be fined to the extent of the pecuniary injury proven by the complainant, to be 
caused by the act of disobedience. 

Injunctions are of a prohibitive character, especially in patent litigations. 

Therefore, a defendant, if the construction given by the United States Circuit Court 
for the Southern District of New York to the Gompers case be correct, who is a violator 
of a decree of the court in an equity suit such as a patent case, can proceed merrily 
with the continued violation of the patent, irrespective of the decree of the court, 
with only the fear of being obliged to pay, if called into court, a nominal fine, as in 
ordinary cases it is practically impossible to show any great damage to the complainant 
in dollars and cents by a specific act of contempt. 

For instance, if the defendant, who has been enjoined from violating the patent, 
should continue to violate under this holding, he will perhaps only be required under 
such a showing as the complainant could make, to pay as a fine" say twenty-five or 
one hundred dollars; though by continuing to infringe and still conducting his bus¬ 
iness, his infringing manufacture of the patented goods, he may in that period of time 
make profits of thousands of dollars. A defendant, therefore, knowing this, would 
not be deterred by the fear of a nominal fine from continuing to do what the court has 
enjoined him from doing. 

It is true that the court also holds that proceedings in the nature of criminal pro¬ 
ceedings may be instituted against the defendant for alleged contempt, but this of 
itself requires a different method of procedure at the hands of the United States 
district attorney, and might require a character of proof being of a criminal nature, 


CONTEMPTS OF COURT. 


117 


which ought not and should not be required of a violator of a decree of a court in 
equity. 

In the case of Solar Light Co. v. Rubin, Judge Lacombe is unofficially reported to 
have made the statement in the United States Circuit Court for the Southern District 
ot New Vork, from the bench, at a hearing of a contempt motion on October 6, 1911, 
substantially as follows: 

“The Gompers case held this: 

‘ ‘ In a case of an order of the circuit court directing a man to do something, the court 
on an application to punish for contempt may imprison him until he obeys the order. 

“If the court orders a man not to do something and he disobeys the order of the 
court, on an application to punish for contempt can not imprison the man for that 
contempt nor punish by a fine for the benefit of the United States. The utmost 
measure of the fine it may impose is the exact amount of money the complainant 
can show he has lost by the specific act of which he complains. 

“Nevertheless if the papers show the order of the court has been disobeyed and the 
matter is flagrant enough the matter may be brought to the attention of the district 
attorney for criminal action. 

“Of course I realize that this puts an almost impossible burden on the complainant. 

“Counsel. Then do I understand your honor to mean that this court is practically 
powerless to enforce its decrees? 

“The Court. Unless the actual money loss can be shown it would seem so.” 

In the case of Victor Talking Machine Co. V. Spiegel, the same judge, on motion to 
punish for contempt, filed a short opinion as follows: 

“Lacombe, C. J. 

“Disobedience of an injunction forbidding the further sale of infringing machines 
is undoubtedly shown and were it not for the decision of the Supreme Court in the 
Gompers case (221 U. S.), I should be inclined to inflict some fine proportioned to 
the gravity of the offense. But that decision seems to hold that the fine to be inflicted 
in a civil application to punish for contempt can be only one calculated to make the 
complainant whole for such loss or damage as it has sustained by reason of the for¬ 
bidden sale. There is nothing in the papers to show the extent of such loss or damage 
and the motion must therefore be denied.” 

Under the old rulings of the court, prior to the decision in the Gompers case, it was 
not necessary that the papers should show the extent of the loss or damage such as 
referred to in the last-mentioned case. 

In another case of the Victor Talking Machine Co. et al. v. Louis Greenberg, in the 
same court, a like disposition was made of the motion to punish for contempt . 

If the Circuit Court for the Southern District of New York has misunderstood or 
misconstrued the Gompers decision in this regard, the matter will doubtless be cor¬ 
rected, or perhaps effective measures, by a slightly different method of procedure, as 
suggested in the Gompers case, employed with effective results. 

It is, therefore, respectfully submitted that the present law, if it is amended at all, 
should not be amended by diminishing the powers of the court or circumscribing the 
inherent right of the judge to punish contempts of his decrees, but if anything they 
should be amplified so as to preserve the dignity of the court. It is thought, however, 
that the present law, section 725, Revised Statutes, reenacted in section 268 of the new 
judicial code, to go into effect January 1, 1912, will be sufficient for this purpose. 

To, however, curtail and diminish the inherent right of the court to punish ade¬ 
quately violation of its decrees, it is respectfully submitted, would strike deeply and 
tend to shake the foundations and stability of the courts, upon which is built the sub¬ 
stantial structures of our judicial institutions, upon which rests so largely the liberty 
as well as the protection of the citizens of the United States. 

THE POWER TO PUNISH INHERENT IN THE POWER TO ADMINISTER JUSTICE IN ALL COURTS. 

The power to punish is an inherent right under the Constitution of the United 
States vested in the courts which are established by virtue thereof. Such a right 
does not have to be specifically delegated by act of Congress, but is an 
inherent right vested by virtue of the Constitution, and must always be so. 

One of the first and foremost axioms in equity is that “a court of equity will never 
make a decree which it can not enforce.” 

The tendency of the present bill, No. 13578, to relegate to trial by jury the ques¬ 
tion of contempt, tends at once to rob the court of this inherent right given to it by 
the Constitution, as interpreted by a long line of decisions, and to, in effect, render the 
decree more or less of a nullity. It is submitted that Congress can not by such a bill, 
in classifying between “direct” and “indirect” contempts, rob the court of this power 
by including certain contempts under the class of “indirect” contempts, to be rele¬ 
gated to a jury. 


118 


CONTEMPTS OF COURT. 


A long line of cases relative to contempt, which need not be cited, show that one of 
the powers of which a court is most jealous is its right to punish a violation of its decree. 
In fact, a defendant under injunction of court, under a long line of decisions, must 
steer clear of any infraction or possible infraction of the writ of injunction. In cases 
of doubt, a defendant before doing a questionable act, has the right and privilege to 
come into court to show his good intentions before committing acts which may be 
construed in violation, or take the consequences. 

GOMPERS V. BUCKS STOVE A RANGE CO. 

(221. U. S., 492.) 

It is submitted that we do not have to go beyond the decision in the Gompers case 
to show that bill No. 13578 embodies material provisions directly in conflict with the 
law as laid down in this case. On page 501 the Supreme Court distinctly states that 
the courts are clothed with the inherent right to punish contempt without referring 
the question to a jury in the same tribunal "and without referring the issues of fact or 
law to another tribunal. It also discusses this* inherent right in the opinion, filed by 
Judge Lamar, and says: 

“For while it is sparingly to be used, yet the power of courts to punish for contempts 
is a necessary and integral part of the independence of the judiciary, and is absolutely 
essential to the performance of the duties imposed on them by law. Without it they 
are mere boards of arbitration, whose judgments and decrees would be only advisory. 

“If a party can make himself a judge of the validity of orders which have been 
issued, and by his own act of disobedience set them aside, then are the courts impotent, 
and what the Constitution now fittingly calls the ‘judicial power of the United States’ 
would be a mere mockery. 

“This power ‘has been uniformly held to be necessary to the protection of the court 
from insults and oppression while in the ordinary exercise of its duty, and to enable 
it to enforce its judgments and orders necessary to the due administration of law and 
the protection of the rights of citizens.’ (Bessette v. W. B. Conkey Co., 194 U. S., 333, 

48 L. ed. 1004, 24 Sup. Ct. Rep., 665.) 

“There has been general recognition of the fact that the courts are clothed with . 
this power, and must be authorized to exercise it without referring the issues of fact 
or law to another tribunal or to a jury in the same tribunal. For, if there was no such 
authority in the first instance, there would be no power to enforce its orders if they 
were disregarded in such independent investigation. Without authority to act 
promptly and independently the courts could not administer public justice or enforce 
the rights of private litigants.” (Bessette v. W. B. Conkey Co., 194 U. S., 337, 48 L. 
ed. 1005, 24 Sup. Ct. Rep., 665.) 

It is true that, as indicated in the Gompers case, the courts must exercise this power 
with discretion—the defendant, however, is abundantly protected—for in case of 
an abuse of discretion of the court there is an appeal to a higher tribunal. 

As before indicated, in view of the other memorandums-to be submitted by other 
parties, more thoroughly reviewing the decisions, we will not attempt here to burden the 
committee with a further consideration of these numerous cases -which can, and will 
be, cited by other parties; suffice it to say that from a practical standpoint, should 
bill No. 13578 pass, and become a law, the results would be a dire and effective blow 
at the foundations of our system of judicial institutions, rob the courts of their dignity, 
and preclude litigants from obtaining justice required in our form of government. 

If a Federal judge is fit to be appointed to the high place which he occupies, in 
determining the rights of parties, we must rest satisfied that he is fit to administrate 
punishment for violation of the court’s decrees; if he extends his powers by abuse of 
discretion the injured party has a right of appeal. We must under our systen of gov¬ 
ernment have confidence and reliance in our Federal judges that they will properly 
exercise the powers given them so long as they remain upon the bench. Any other 
theory is subversive of the theory of our system. 

It is respectfully submitted that section 268 of the new judicial code, so carefully 
prepared, which is to go into effect January 1, 1912, should remain as it is, unaltered 
and unchanged, following word for word as it does section 725 of the Revised Statutes, 
and have the benefit of a line of decisions construing that section. 

To make now a new law will be to undo all the work that has been done before the 
courts in construing this section. It is further respectfully submitted, for the reasons 
hereinbefore given,-and for many other reasons urged in other memoranda opposing 
this bill, that House bill No. 13578 should not receive the approval of this honorable 
committee. 

All of which is respectfully submitted. 


o 

























. 

# 












* 


' 


















* 

. 






■ 















